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Full text of "The Outlaw's Bible: How to Evade the System Using Constitutional Strategy"


(f~ 



X. BOOZHIE 



THE 

OUTLAW'S 

BIBLE 

HOW TO EVADE THE SYSTEM 
USING CONSTITUTIONAL STRATEGY 

by 
EX Boozhie 




Loompanics Unlimited 
Port Townsend, Washington 



^ 



DEDICATION 



This book is dedicated to The Cops, who shall not be 
referred to herein as "pigs" out of respect for the species 
of animals. 



X 



FORWARD 



Every now and then the forces of time, circumstance, 
and fate come together and certain lives and happenings 
enjoin. I met E.X. Boozhie on the yard of a maximum 
security prison. He was diligently studying law boolcs, 
taking notes, and typing voluminous pages of material. 
Being a "jallhouse lawyer" myself, I instantly thought, 
"WOW, this guy must have some case!" 

I was eventually introduced to our author, and as we 
spol<e of politics, religion, and philosophy, we came to 
find that our experiences had brought us to a perception 
of the American justice system which we shared in 
common — that it exists only for the benefit of the 
ultra-rich. What E.x. had been laboring on was his own 
reaction to this unhappy insight; it was the bool< you are 
now holding. 

The Outlaw's Bible is not just a bool< for lawbreakers. It is 
for all people who undertake to seriously learn about the 
"legal rights" supposedly available under the u.S. Consti- 
tution. The average man or woman never thinks about 
rights or legalities. I find it strange that there are 
absolutely no basic studies of law in any public school, 
yet the Law Library of Congress contains an amazing 
7,000,000 books on law alone! You simply can't get 
through a day without breaking some law or other. 



^ 



As you read this rare treatise, remember tfiat some- 
day, somehow, you may need to hide from the police and 
avoid prosecution. This bool< contains the oniy non- 
violent weapon you can arm yourself with. Use it; take 
it very seriously. 

Avi Naftel 

Arizona State Prison 

1985 



Table of Contents 



Part I — Orientation 

Chapter 1 
Introduction 1 

Chiapter 2 
The Cops 7 

Chapter 3 
The Courts 21 

Chapter 4 
The Keepers 41 

Chapter 5 
The constitution 55 



Part II - The Fourth 

Chapter 6 
The Fourth Amendment 71 

Chapter 7 
Exceptions To The 
Warrant Requirement 85 

Chapter 8 
Search And Seizure Of The Person ioi 

Chapter 9 
Places Of Privacy 121 

Chapter 10 
Breaching The Castle Gate 135 

Chapter 11 
Belongings 1 51 



Part III - The Fifth 

Chapter 12 
The Privacy Of words 175 

Chapter 13 
Miranda And The Seizure Of words 193 

Chapter 14 
The Squeeze 217 

Part IV - Facts Of Life 

Chapter 15 
Dirty Tricks 235 

Chapter 16 
The Airport 255 

Chapter 17 
The Ten Commandments 275 

Afterword 307 

Index 31 1 



Parti 



ORIENTATION 



Chapter 1 



INTRODUCTION 



"When a person cannot know how a court will 
apply a settled principle to a recurring factual 
situation, that person cannot l<now the scope 
of his constitutional protection, nor can a 
policeman know the scope of his authority." 

Justice Potter Stewart, New York v Belton, 453 
US 454, 459-460, 101 SCt 2860, 2864 (1981) 



You're likely to get into trouble. 

Perhaps it's because of your weakness for some good 
"smoke" now and then, or because out-of-season game 
tends to find its way into your freezer. l\/laybe you keep 
a handgun in your car, or cant resist exaggerating a bit 
when you fill out loan applications, income tax forms, 
and the like, in one way or another, most of us do oc- 
casionally break the law. it might even be that you're 
into something a bit more "substantial," such that you'd 
be considered a professional outlaw. Maybe you deal 
drugs, smuggle, hustle, steal, or engage in some other 
illegal operation for profit. Perhaps you're already a 
fugitive with your name on the hot list and the law on 
your tail. 

Whether you're a lawbreaker, or you just like the com- 
pany of those who are, your ignorance about the law 
makes you a danger to yourself and to your friends, it 
could easily cost you your life. It is primarily for your 
benefit that this book was written, so read on and be the 
wiser. 

If, on the other hand, you're as innocent as a newborn 
lamb, and merely harbor a little academic curiosity about 
how your own rights measure up against those of the 
police, then this book is for you, also. You probably don't 



3 - 



like the idea of being dominated and manipulated by the 
police, and may have had occasion to wonder just how 
far the law really does entitle them to push, such a curi- 
osity is very healthy, because no matter how saintly a 
person may be, he never knows when he might find 
himself facing a criminal charge — a circumstance where 
some practical knowledge of constitutional rights can be 
lifesaving. 

Law books are too dry and technical for most people 
to read, and this is why the average citizen never really 
learns what his rights are. It fits right into the plans of 
those captains of the System, the cops and the lawyers, 
because with the citizens in the dark, they can do pretty 
much what they please without recriminations. This 
book aims to put a stop to that situation by laying out 
in plain English an up-to-date overview of the citizen's 
legal rights against police activity. It gives an explan- 
ation from the common man's perspective of how the 
criminal justice system works in real life. It tells precisely 
where anti to what extents person has a legally reliable 
right to privacy. It tells precisely what limits are imposed 
by law upon the police. In short, it tells you how the cops 
operate, how far they can go, and what you can and can- 
not expect to get away with. 

While the presentation of this material is non-technical 
and geared to the ordinary person, precision and com- 
pleteness have not been abandoned. The idea here is to 
present an accurate picture of the overall law that 
governs us, regardless of which state we happen to be 
in at the time, iviost of this information has therefore 
come from the federal law books. State laws are some- 
times either stricter or more lenient than the corre- 
sponding federal ones, and for some types of crimes 
there don't even exist comparable laws in both state and 
federal jurisdictions. To the extent that every state is 
ultimately under the authority of the united States 
Constitution, however, state laws are controlled by 
federal law, and a person can pretty much rely on that 
during his confrontation with state and local police. You 



don't have to know all the ramifications of the law In 
order to get along. State law is occasionally mentioned 
in this book in order to give you some idea of the 
variations that can exist in the law from one place to 
another, but no attempt is being made here to provide 
an exhaustive summary. This book is strictly for getting 
the "big picture." if you want to know exactlywhere you 
stand, you'll have to go to a local law library and look up 
the state and federal statutes that apply to you where 
you are — either that, or ask a lawyer.^ 

Every person knows that he doesn't want to go to jail; 
you don't need a book to tell you that, unless you've had 
personal experiences with the criminal justice system, 
however, it isn't likely that you really know what you're 
up against. Those of you who've already taken a fall 
know what the System is all about. You've met the 
players on the field and seen them in action; you may 
skip on ahead to Chapter 5. But if you haven't yet been 
in trouble with the law, the next three chapters will give 
you a valuable opportunity to make the acquaintance of 
your enemies before they meet you. They aren't any- 
thing at all like those mythological creatures which our 
middle-class orientation has taught us to believe in. 
You've seen them on the street... you've had drinks with 
them at the Club... perhaps you're even related to one of 
them. NO matter how well you think you've known 
them, however, you really don't know them at all until 
you've seen them from behind bars. The insight that 
comes from that perspective is very important, for it 
teaches you to beware of them and to avoid under- 
estimating them; underestimation is the deadliest sin of 
all. 

The criminal justice system, which we'll henceforth 
refer to simply as "the System," can be likened to a pred- 
atory beast. From the point of view of its prey, there are 
three significant parts to the beast: the claw, which it 
uses to reach out and snatch up prey; the jaws, into 
which the prey is stuffed and processed for digestion; 
and the belly, where the chewed-up prey is digested and 



sapped of all its nutrients. The prey in this simile is the 
citizen — you. The claw represents the police, the jaws 
the court system, and the belly the prison system. All 
three organs work together toward the ultimate 
benefit of each other, and all three live off the destruct- 
ion of the prey, ivieet each one of them now — the Cops, 
the Courts, and the Keepers. 



REFERENCES 

1. You can learn to look up the law for yourself by 
reading Legal Research in a Nutshell, by Morris L. Cohen, 
West Publishing Co., St. Paul (1978). Then go to any 
county courthouse to use the law library, because 
they'll have all the local law books there, and citizens 
are entitled to use them. 



6 - 



Chapter 2 



THE COPS 




- 7 - 



"Thou hast seen a farmer's dog bark at a beg- 
gar?... And the creature run from the cur? There 
thou might'st behold the great image of 
authority: a dog's obeyed in office. 

William Shakespeare, King Lear, Act Iv, Scene 6, 
line 159 (1608) 



The most visible member of the System, and the first 
one you'll come in contact with, is the cop. He isn't 
always recognizable as such, because it's his state of 
mind, rather than his clothes, which makes him what he 
is. His ambition is to control the behavior of other 
people. He lacks imagination and tends to think in a linear 
fashion, so he usually relies upon rules to solve every- 
thing. In this respect, he has much the same mentality as 
the religious zealot,- indeed, many cops are religious in 
addition to being legalistic. They believe that the world 
is in conflict between absolutes of right and wrong, and 
that rules exist for the purpose of sustaining the 
triumph of the "right" over the "wrong." Whether these 
rules are Cod's or the government's, the cop sees it as his 
duty to enforce them. 

Organized government holds the championship title 
for rule-making, so it's not surprising that this kind of 
person would be attracted to it for a livelihood. He's 
deeply impressed by the government's status as domi- 
nant authority in our society, and he's likely to attribute 
the quality of justness to its rules simply on that basis 
alone. When asked why he puts his support behind the 
establishment, he's likely to reply, "because it's the law." 
What he's actually doing is aligning himself with what he 



perceives to be the "winning side." He chooses establish- 
ed government to join up with so that he can share in 
the security that comes from the legitimacy and prevail- 
ing balance of power that it holds. 

Cops tend to have fragile egos, and it's very important 
to them that their pride be continually bolstered. Police 
work meets this need by clothing them with the govern- 
ment's authority. Instantly the cop becomes far more 
powerful than he could ever hope to be on his own 
merits. The fact that the authority he wields is actually 
the government's, and not his own, is unimportant to 
him; for all outward appearances, he's the boss. Some- 
times he can use the government's authority to further 
his own personal Interests, and at other times he must 
be content to exercise the authority for the sole inter- 
ests of the government. Either way, however, he derives 
satisfaction from being "The Man" and reaffirming his 
prestigious self-image. 

Cops hardly ever get rich, because they spend their 
lives doing the footwork necessary to make other 
people's rules work. Those other people — the "movers 
and shakers" who are the brains behind the power 
structure of society — are the real beneficiaries of the 
cop's labors. They make the rules, and the rules serve 
their interests. They set the System up so that it 
provides the cop with a decent living in return for his 
services, but the economic reality is that he's strictly 
hired help. Unless he can get a hustle going on the side, 
or somehow work his way up into politics, a cop will 
never get much financial reward from his job. 

Very few of them have enough originality or ambition 
to turn a police job into something lucrative. The rare 
entrepreneur might succeed by putting his police skills 
onto the commercial marketplace, as Alan Pinkerton and 
William J. Burns have done, but most ambitious cops 
attempt to further their careers via the political route. 
They get a law degree, go to work for the local prose- 
cutor's office, and attempt to build up a reputation by 



10 



convicting people of crimes. The more people they send 
to prison, and the more newsworthy the cases are, the 
better the press coverage is for them. Thus, with 
sufficient publicity, political shrewdness, and a gullible 
electorate, an ambitious cop can claw his way up into 
public office and become one of the rule-makers himself. 

As you may have already noticed, the term "cop" is 
being used in a very inclusive manner. Policemen are 
cops, to be sure, but there are many other types of cops, 
too. Once you realize this and learn to recognize them as 
the threats that they are, you'll have neutralized one of 
their most potent weapons - the element of surprise. 

Think of cops as being of two basic types — the pro- 
fessionals and the amateurs. Professional cops are in 
police and security work as a full-time vocation, and may 
be either governmentally- or privately-employed. 

At the lowest rung of government are the municipal 
cops, notably the police and fire departments. City police 
- the "boys in blue" - are the most visible of all cops, 
since they patrol the streets in uniform. Their brothers 
in the fire department, however, shouldn't be under- 
estimated just because firemen aren't primarily con- 
cerned with crime. They work closely with the police; in 
fact, fire inspectors are the ones who are in charge of 
arson investigations. Moreover, firemen are often likely 
to come across contraband or other evidence while 
putting out a fire. Their mentality and sympathies are 
basically the same as the police. 

At the next tier of government, the county and state 
level, there's a massive profusion of cops doing the 
government's work. The most important ones are the 
state police and county sheriff's departments and their 
respective state and county attorney's offices. These are 
the cops that handle most of the felony prosecutions. 
The prosecutors are sometimes referred to as "district 
attorneys" (D.A.s), and their big boss is the state attorn- 
ey general (although the governor is technically the top 
executive officer of the state). Other cops at this level 



11 - 



of government include those of the coroner's office, tax 
office, health department, and forest service, to name a 
few. 

On the federal level we find a further plethora of cops 
- what we'll henceforth refer to in this book as "the 
feds." Some of the better-known agencies include the 
Federal Bureau of Investigation (F.B.I.), Bureau of Alcohol, 
Tobacco and Firearms (A.T.F.), Drug Enforcement Admin- 
istration (D.E.A.), Secret Service, Marshals Service, Postal 
Inspectors, internal Revenue Service (I.R.S.), Federal 
Aviation Administration (F.A.A.), Securities and Exchange 
Commission (S.E.C.), Federal Communications Commission 
(F.C.C.), and National Park Service. Looking out for our 
national frontiers are the Coast Guard, Border Patrol, 
Bureau of Customs, and Immigration and Naturalization 
Service, we mustn't forget the military, either; the 
armed forces are the country's police force on the 
international level. Of particular significance are the spy 
outfits, such as the Central Intelligence Agency (C.I.A.) and 
National Security Agency (N.S.A.), as well as the various 
internal police agencies within the Department of 
Defense (military police, O.S.I., etc.). 

Other countries, of course, have their own equivalents 
of all these officers. There's also a non-governmental 
organization called Interpol which helps the government 
cops of different countries to coordinate their efforts 
on a world-wide scale. 

Privately-employed cops should generally be recog- 
nized within two basic categories - those of the "pri- 
vate sector" and those who conduct certain business 
services. The "private sector" refers to all manner of 
police and security-type jobs which are hired commer- 
cially. Private investigators, detective and guard agenc- 
ies, insurance investigators, and private industrial 
watchmen make up this category. These jobs usually 
require government licensing, and they're often filled by 
ex-government cops. Skip tracers, bounty hunters, and 
repossessors occupy the lower echelon of the private 



- 12 



sector. They provide the muscle for tracking down 
welchers, ball jumpers, and unpald-for vehicles for the 
benefit of the private concerns which have a financial in- 
terest in them, various business services, notably credit 
bureaus, computer services, and informational services, 
also represent a category of private cops. Their low 
visibility and the subtlety of their "police" functions 
mal<e it inapparent to most people that these are indeed 
cops. They compile vast files of information on you and 
mal<e it available to insurance companies, private con- 
cerns, and the government... any of which can use it 
against you. 

Amateur cops are ordinary people who get involved in 
police work without making their living off it. They're 
often simply public-spirited citizens who are gulled into 
aiding the police by virtue of their good-natured desire 
to help people. Some of them are members of organi- 
zations such as the Boy Scouts, Civil Air Patrol, Jaycees, 
and Radio Hams, which incidentally happen to support 
the police. Others are police "groupies" who hang around 
law enforcement agencies in order to satisfy a psycho- 
logical need, in many places the police have actually 
solicited senior citizens, youths, and other folks with 
spare time on their hands for their participation in police 
auxiliary groups. They put the volunteers to work doing 
repetitive or unskilled tasks so that the paid police can 
be freed up for other duties, in some localities the 
amateur cops are organized into "block watch" patrols 
which drive around with walky-talkies, reporting on 
anything suspicious that they happen to see. Moralistic 
and often prejudiced, the police groupy tends to suffer 
from an exaggeration of all the worst qualities of the 
cop mentality. 

The sleaziest species of amateur cop, and the only one 
who might occasionally turn a profit from his activities, 
is the informer. He's known colloquially by a variety of 
names - shitch, rat, stoolie, squealer - and the police 
refer to him these days as a "C.I.," or "cooperative 
individual." He runs to the authorities with incriminating 



13 - 



information that he iearns from his friends and associ- 
ates. He's usually prompted to such betrayal by one of 
five motives: (1) moralistic indignation (i.e., "Why should 
he get away with that?"); (2) revenge; (3) desire to 
eliminate competition; (4) hope of reward; and (5) fear (of 
either the persons he's snitching on, or of police 
extortion). 

The snitch is the single most powerful tool that the 
police have. Through his assistance, there have been 
more undetectable crimes disclosed, more unbreakable 
cases brol<en, and more invulnerable suspects convicted 
than by all the combined technology of the law enforce- 
ment arsenal. Professional cops exploit this valuable 
resource by appealing to the five snitch-motives wher- 
ever and whenever they can, always hoping to develop 
a new "source." The government cops create many of 
their snitches by extorting cooperation from people 
they've caught but have refrained from filing charges 
against. Junldes are particularly vulnerable to this ploy 
because the prospect of even a minor bust is a night- 
mare for someone who's physically dependent on nar- 
cotics. 

A chilling illustration of the significance of a snitch is 
the trial of Irish Republican Army (l.R.A.) suspects which 
began iviay 8, 1984 at the Belfast Crown Court In North- 
ern Ireland. A single informer named Raymond Gilmour 
was responsible for bringing 39 people up on 190 charges 
ranging from "helping an illegal organization" to mur- 
der.^ in our country, it's more common for the police to 
refrain from even identifying their informers, much less 
bring them into court to testify. They prefer to l<eep 
them out there working in the community until they're 
either discovered and killed, or no longer useful. Nobody 
really likes or respects the snitch, not even the police; 
he's merely an effective tool for them to use up and dis- 
card. 

Bearing in mind their different perspectives, we can 
now briefly discuss what the various cops intend to 
accomplish by their activities. 



14 



Amateurs are ostensibly involved in police worl< to 
provide a "service to manlcind." If motives are honestly 
appraised, however, it's usually the satisfaction of a per- 
sonal psychological need which they're really out to 
achieve, in the case of an informant, the purpose is to 
satisfy his indignation, revenge, jealousy, greed, or fear. 
Amateur cops can snoop around and perform a variety 
of auxiliary tasks, but invariably they must get their ob- 
jectives accomplished through the police, since they 
have no real authority of their own. 

Private cops are out to protect the interests of their 
paying clients (or employers). They're the only ones who 
actually are out to accomplish their stated purpose. 
There may be secondary benefits, such as ego satis- 
faction, but the profit motive is their principal driving 
force. They snoop, develop data files on people, and 
collect evidence for their clients' use. They tracl< down 
missing persons and things. They stand guard over 
property and transport valuable cargoes, unlike the 
amateur cops, they're usually authorized to carry guns 
and use them, and they can get down to business on the 
physical level if it's necessary. 

Government cops are purportedly out to take care of 
citizens - "to serve and protect," as the police motto 
claims. Their real purpose, however, is something which 
few of them ever consciously think about. It has nothing 
to do with making "right" triumph over "wrong." Their 
true mission is to protect the status quo for the benefit 
of the ruling class. 

A few outrageously powerful concerns own most of 
the wealth of this country, and indirectly control most 
of what they don't own. The legal machinery, which con- 
sists of the courts and lawmaking bodies, is part of that 
controlled realm. Laws are created by the legislatures 
and interpreted by the courts so that the interests of 
the controlling powers are best served. Naturally, they 
consistently process the laws in their own best interests 
as well. A complex system of prerogative has thus been 



15 - 



created, whereby the lion's share of the wealth and 
power Is retained by the elite, and generous portions are 
allowed to filter down within privileged circles. The bulk 
of the population, those middle-class working folks 
whose labor has generated all this wealth, are lucky if 
they get enough to make ends meet. The poor get a few 
bones to chew on. 

iviany of the middle-class folks, including the cops, oc- 
cupy government jobs. These jobs don't generate any 
wealth at all; government regulates, it does not create 
or produce anything. Ultimately, then, all the govern- 
ment parasites and elitist fat cats are supported by the 
overburdened working stiff, who consequently finds 
himself staring blankly at his empty hand and wondering 
where all the money has gone. Some plausible explan- 
ation is in order to assuage his discontentment. 

Enter the poor man. Crude and scantily-educated, he 
fails to communicate well with middle-class people. He's 
culturally and socially a world apart from them, and he 
lives in places where they wouldn't go in broad daylight. 
They cannot understand or empathize with him, and it's 
only a one-step journey to go from ignorance to hatred. 
They're prepared to believe the worst about him,- and 
the worst Is what they hear. 

Reports come pouring out of government agencies 
raising the hue and cry that crime is on the rise in Amer- 
ica. Newspaper headlines and the Six O'clock News 
broadcast graphic stories of murder and mayhem on the 
streets. Politicians pontificate about cleaning up crime 
and bringing back the "good old days." Movies and tele- 
vision programs dramatically portray innocent citizens 
being brutally assaulted by grotesque-looking thugs. And 
who are the thugs that receive all this bad press? You 
guessed it - it's the ghetto people. 

Like the Jews, who provided Hitler with a convenient 
scapegoat for rallying the support of the German people, 
the urban poor in America supply our government with 
the alibi it needs to rationalize its excesses to the middle 



16 



class. Police, courts, lawyers, and prisons generate vast 
expenses which must be paid for in order to control the 
"ghetto menace." under the pervasive effects of estab- 
lishment-inspired propaganda, the working folks are con- 
vinced that their tax money is being wisely used in the 
worthwhile cause of protecting them from their lower- 
class "enemies." With their resentment and blame di- 
verted against the poor, they offer no resistance to the 
real crooks, who continue to fleece them openly and 
legitimately under the guise of governmental need. 

To make good their function of protecting the status 
quo, the police work toward two principal objectives - 
getting the lawbreakers out oif circulation and deterring 
the populace from violating the law. They usually suc- 
ceed In the first objective by getting the citizen into 
court, where he's convicted and sentenced to prison, in 
the case of a foreigner, an alternative approach Is to 
have him deported out of the country. Sometimes the 
police get to exercise a third option by killing the suspect 
while apprehending him. 

By the use of deterrence, the police can exert their 
control over the entire population, rather than just the 
few Individuals who actually get caught breaking the 
iaw. Most of the citizenry can easily be intimidated into 
cooperating with the government because they don't 
want to risk upsetting their own little status quo; jobs, 
reputations, possessions, and freedoms can readily be 
compromised by the government. When the unusual 
citizen decides that he's not going to be intimidated, and 
openly defies the government, he's likely to be vigor- 
ously pursued until he's either reformed or eliminated. 
An old farmer named Gordon Kahi was such a feilow; he 
refused to pay his income tax, and when the usual police 
harassment failed to "rehabilitate" him, he was goaded 
into armed resistance, hunted down, and executed John 
Dilllnger-style.V' 

Like the private ones, government cops spend much of 
their time snooping, developing data files, and collecting 



17 - 



evidence. Sometimes they'll work In secrecy for years be- 
fore they're ready to bring charges against a suspect. 
Police bugging and wiretapping of American citizens 
reached its peal< in 1971, then saw a temporary decrease 
in the waice of the Watergate scandal. With 208 author- 
ized taps in 1983, however — a 60% increase over the 
previous year - the feds have returned to their record 
levels of activity, and promise to go much higher, iviost 
of this surveillance relates to narcotics investigations 
and is directed against single-family homes. Although 
each phone tap eavesdropped on an average of 147 
people, the feds admit that only about 16% of the con- 
versations were "incriminating." All this surveillance is 
quite expensive; each one of the warranted taps done in 
1983 cost the taxpayers an average of $65,300. one wire- 
tapping operation alone — that of Katherine Boudin, 
who was being investigated for a 1981 Brinies trucl< rob- 
bery - involved 50 cops, and cost two million dollars!* All 
these figures represent authorized wiretaps, of course,- 
the extent of t//7authorized electronic surveillance in 
America is many times greater. 

Police spend a sizeable portion of their time these days 
setting up crimes of their own so they can bust whoever 
is willing to participate with them. They impersonate 
buyers and sellers of drugs, stolen goods, prostitution, 
murder contracts, bribes, or anything else that's illegal. 
The Abscam and DeLorean investigations are well-known 
examples of this type of scam. The F.B.I. alone conducted 
316 such probes during 1983, and they've earmarked 12.5 
million dollars for undercover work in 1984.^ Legislators 
have been worried about this sort of police activity, 
since it's often directed at their own lily-white necks in- 
stead of at a lowly bunch of ghetto tramps. Following 
the lead of the Senate Select Committee which deliber- 
ated on the subject in 1982,^ the Democratic majority of 
a House Subcommittee recently recommended that the 
cops be required to get a warrant before launching a 
secret probe.^ it's unlikely that there'll be any such legis- 



18 - 



latlon in the near future, however, and for the time 
being everyone is fair game for an undercover "sting." 

Aside from their spying and entrapment activities, the 
police are capabie of a variety of other dishonorable 
things that the ordinary citizen doesn't realize. The 
author can testify from personal experience that they 
will falsify physical evidence and coach witnesses to tell 
lies in order to assure that their criminal prosecutions 
will result in conviction. They occasionally carry around 
small quantities of dope to plant on people in order to 
create the pretext for an excuse to hold them. Some of 
them even keep an untraceable handgun in their squad 
car in case they shoot someone who turns out to be un- 
armed. The "throw-down" gun is simply tossed near the 
body so that the officer can easily vindicate himself by 
claiming that he had shot in self defense.^ 

Once the police have enough evidence to justify bring- 
ing charges against somebody, they go through a litany 
of legal procedures which culminates in the suspect's 
trial. First, they file a "complaint" with the grand jury, 
and it in turn issues an "indictment" (the formal charge). 
Based on the indictment, a judge then issues a "warrant" 
authorizing them to arrest the person. They can skip the 
grand jury if they want to, and the judge will still give 
them their warrant, but then they have to issue their 
own version of the indictment, which is called an 
"information." With an "information" the cops are 
generally required to give their suspect the benefit of a 
"preliminary hearing" or "prelim," wherein the judge 
must determine whether there's probable cause to be- 
lieve that he's guilty. The cops generally prefer to avoid 
this, since it gives the suspect a chance to block their 
prosecution; the grand jury indictment, on the other 
hand, is practically a sure thing. 

With their warrant in hand, the cops are ready to 
arrest their man. if they have probable cause to believe 
that he's guilty of a crime, they can arrest him without 
a warrant, and do the paperwork later. Either way, the 



19 - 



arrest that follows Is standard operating procedure 
which is familiar to all TV viewers: they inform the sus- 
pect that he's under arrest, read him his "rights," frisk 
him for weapons, put on the handcuffs, and cart him off 
to jail. This is the ultimate "high" for a cop, especially if 
he has an audience,- in one dramatic and glorious spec- 
tacle it gives expression to everything that holds 
purpose for him in life. 



REFERENCES 

1 . The Christian Science i\/ionitor, May 9, 1 984, p. 2 

2. "Shootout in a Sleepy Hamlet," Time, June 13, 1983 

3. ivianu, D., "Update on Kahl - What the News Didn't 
Jew," The Justice Times, September 1983, (Box 562, 
Clinton, AR 72031) 

4. Crier, Peter, "Federal Use of Wiretaps," The Christian 
Science i\/ionitor iviay io, 1984, p. 5 

5. "When Government Tempts," The Christian Science 
Monitor, May 3, 1984, p. 19 

6. The Criminai Law Reporter, 32 CrL 2297, i /i 2/83 

7. Webster v City of Houston, 689 F2d 1 220 (Sth Cir. 1 982) 



\0 



Chapter 3 



THE COURTS 




21 - 



"The hungry judges soon the sentence sign, 
And wretches hang that jurymen may dine." 

Alexander Pope, Rape of the Lock, Canto iii, line 

21 (1714) 



The engine of the mighty C, C, & K. Railroad, which first 
began to cranl< over its massive wheels at the time of in- 
dictment, will be steadily chugging down the tracl< by 
the time its new passenger gets his first view of the 
courtroom. This will occur within about 48 hours of ar- 
rest, because that's when they're supposed to bring 
every arrested person in front of a judge for his "initial 
appearance." The purpose of this hearing is to establish 
who the arrestee is, what the charges are, and whether 
or not he can get out of jail on a pre-trial release agree- 
ment. If it's a penny-ante beef they might let him out on 
his "own recognizance" (O.R.), which means that he gives 
his word that he'll show up for trial later, if the charges 
are substantial enough to threaten a penalty of prison, 
they'll require the suspect to post a bail bond as an in- 
centive to assure that he'll be back at trial time. Depend- 
ing on the amount of bail that the judge sets, it might 
be necessary for a guy to sign over his house, his com- 
pany stock, the beach front property, and his wife - all 
of which is forfeited if he skips out. When the charges are 
very serious, or when the suspect can't afford bail, the 
hoosegow will become home until his trial's over,- and 
that can often be more than a year. 

The next step of the prosecution process is "arraign- 
ment," which takes place within a week or so. This is 



23 



when the suspect is brought in front of the judge to 
plead either "guiity" or "not guiity" to the charges. A 
triai date is set, and if the person is stili ioclced up it's 
another opportunity for him to asl< the Judge for pre- 
trial release. 

By this point in time one usually knows whether the 
cops have an airtight case or one that could go either 
way at trial. In most instances of the former, it's custom- 
ary for the prosecutor to approach the defendant with 
an offer of a "plea bargain," which is a contract between 
the accused and the court. The plea agreement specifies 
a conviction and penalty, and takes the place of the trial,- 
it's like an out-of-court divorce settlement. The govern- 
ment likes to make plea agreements because it saves the 
expense and time of a trial, which can easily cost the 
state a five-figure sum and weeks of court time. The fact 
of the matter is that if they had to give a trial to every 
person they brought charges against there wouldn't be 
enough judges, jurors, or courtrooms to go around. 

The prosecutor creates the incentive to accept his 
terms in several ways, all of which boil ddwn to plain, old- 
fashioned extortion. First of all he'll file as many "counts" 
of as many different charges as he can dream up. it's a 
little bit like going through the line at the cafeteria. You 
take three pads of butter, some sour cream, and a few 
chives for your baked potato. You stack some mush- 
rooms on top of your steak, and - oh, better make it 
two beverages, since they're small. When you get to the 
cashier she charges you three times for butter, twice for 
the drink, and again separately for each helping of sour 
cream, chives, and mushrooms - all in addition to the 
steak and potato. That's the way they pile on the crim- 
inal charges. With a dozen people in the bank, a simple 
five-minute stickup can be described by the cops as 
"twelve counts of kidnapping, twelve counts of display- 
ing a deadly weapon not in self-defense, and one count 
each of armed robbery, carrying a concealed weapon, 
possession of an unregistered firearm, possession of a 



- 24 - 



firearm by an ex-felon, and commission of a felony while 
on parole." 

As if the multiplicity of charges isn't bad enough, the 
prosecutor will threaten to try for consecutive, rather 
than concurrent, sentences (a proviso that's colloquially 
referred to as "running the sentences wild"). If he's suc- 
cessful it would mean that the convicted person would 
have to serve out each sentence before starting on the 
next; four 5-year sentences could take twenty years to 
kill, instead of just five years with all sentences running 
concurrently. 

Since the punishment for a given crime is generally 
greater for a person who's had prior convictions than it 
is for the first-time offender, a prosecutor will also use 
this as a selling point; having "priors" can effectively 
triple the penalty that a person receives. 

Other factors known as "aggravating circumstances," 
which the judge can use to "enhance," or worsen, the 
sentence that he hands down, include "dangerousness" 
(i.e. whether a weapon was used), "heinousness" (i.e. 
whether cruelty was notable), and "repetitive nature" 
(I.e. whether the guy keeps getting into trouble for the 
same crime). 

All these options give the prosecutor bargaining 
power. Even if the defendant mentioned above were 
actually innocent of all charges, he might be inclined to 
plead guilty to one count of armed robbery, with a sen- 
tence of ten years, rather than risk going to trial and 
facing 29 counts carrying about 300 years with the 
allegations of dangerousness, repetitiveness, and priors 
all hanging over his head. Having been through the 
System before, he'd be all the more likely to sign because 
he's already seen how easily the courts can railroad a per- 
son when they want to. 

If the prosecutor can't scare his defendant into signing 
a plea agreement, or if he wants to take the case to trial 
so he can write a book about it and get more publicity 



25 



for himself, the next event will be the "pre-trial hearing." 
This is when the defendant's lawyer tries to get the 
judge to throw out the prosecutor's evidence. To do this, 
he accuses the cops of acquiring their evidence by vi- 
olating his client's rights. When they can't refute this 
charge the judge is supposed to "suppress" the evidence, 
which means that they can't use it. No evidence, no case. 

This is the juncture at which most of the information 
in this book will prove its value, because the wise reader 
will pay close attention to the constitutional limits that 
are drawn and conduct himself and his affairs in such a 
way that the cops won't be able to get any evidence 
against him legitimately. Anything they get on him will 
have to be acquired through a constitutional violation, 
and will be properly quashed at the pre-trial hearing. 

One word of forewarning here, however - frequently 
the judge doesn't do his job, and allows evidence into the 
trial which should have been suppressed. When that 
happens, and the defendant gets convicted because of it, 
he has to go to prison and work his way back into court 
on appeal so that the evidence can be suppressed as it 
should have been in the first place. This is all very unfair 
because it usually takes a couple of years to get a case 
overturned on appeal. It's all part of the game; the cops 
and the courts are partners in the System, and they see 
this as an opportunity to burn a guy who's obviously 
guilty but technically beyond the reach of the law. Cops 
don't like the idea of a suspect going free on a technical- 
ity, and the courts are often willing to play along with 
them by bending the rules in order to illegitimately 
punish such a person. They realize that he'll probably win 
his case on appeal, but they figure to get at least a 
couple of years out of him before he does. This little 
aside is made merely to clear up the misconception that 
most folks harbor about legal "loopholes," they're 
genuine lifesavers, and the professional outlaw uses 
them to limit his losses and prevent a real disaster, but 
they aren't talismans. Metaphorically speaking, they'll 



- 26 



protect you from the knockout punch but they can't 
always guarantee that you won't get skinned up a little. 

Everything comes to a climax with the trial, which is 
the System's mechanism for branding the defendant as 
"government property." Theoretically it's a formal arena 
where a wise and impartial judge and a disinterested 
panel of civilians hear both sides of the story (the de- 
fendant's and the cops'). The prosecutor strives to 
convince them that the defendant is the Devil himself 
and should be shown no mercy, while the defendant's 
lawyer tries to show that the whole affair is a terrible 
mistake and that his client hasn't done anything to de- 
serve punishment. The jurors have to decide what the 
facts are, while the judge tells them what the law is. 
After doing some more deciding the jury eventually 
either (1) "acquits" the defendant (which means that he's 
free to go home), (2) "convicts" him (which means that 
he must be sentenced to some kind of punishment), or 
(3) fails to come to a unanimous decision — a "hung jury" 
(which means that he has to go through a whole new 
trial with a whole new jury). 

The reality is that most of the time the defendant 
gets convicted. That "impartial" judge is just as anxious 
to get him into prison as the prosecutor is, since he too 
is a cop and was once a prosecutor himself. That "disin- 
terested" jury might better be described as an "un- 
Interested" jury because the half that wasn't either 
knitting or snoozing during the trial is likely to consist of 
members of the local lunatic fringe who share the prej- 
udices of the police groupy. And contrary to the popular 
government-inspired myth that people are held to be 
innocent until proven guilty, it's likely that most of the 
jurors made up their minds the moment they first saw 
the defendant and heard the charges. The average 
citizen's faith in government, coupled with his lack of 
personal experience to the contrary, leads him to 
assume that a man standing trial must be guilty, "or 
otherwise he wouldn't be there." The Irish-American 
social satirist Finley Peter Dunne parodied jury deliber- 



27 



ation In the following mannen "When the case Is all over, 
the jury'll pitch th' tistimony out iv the window, an' 
consider three questions: 'Did Lootgert look as though 
he'd kill his wife? Did his wife look as though she ought 
to be kilt? Isn't it time we wint to supper?"^ 

After the bad news comes in from the jury there's one 
more stop that the legal locomotive makes on Its way 
through the courthouse - the defendant, now a "con- 
victed felon," must be sentenced. The jurors have all 
gone home to their housework or park benches, and It's 
up to the judge to do the honors. Though not required, 
it's often customary to delay sentencing until a couple 
of weeks after conviction so that a social worker from 
the probation department can write up a "presentence 
report" for the judge. This is a brief summary of the con- 
vict's life story as seen through the eyes of the cops - 
untried accusations from the police files, prior appear- 
ances in criminal courts, bail-jumping or escape attempts, 
conflicts with probation or parole officers, negative 
prison reports, other pending charges - It's all there. The 
social history bears a closer resemblance to a pedigree 
than to a profile of a man's life; it lists his vital statistics, 
his family members, places of residence, and occupation, 
but gives no Indication that he might be a devoted fam- 
ily man, a worthwhile citizen, or a valuable employee. 
The real kicker in this report comes under the section en- 
titled "Statement of Offense," where the writer gets his 
big chance to stack the deck. There'll be vivid accounts 
of the dastardly deeds, heart-rending statements from 
the "victims," and enough opinionating by the writer to 
justify the posting of a caption reading "Why I Believe 
the Defendant should Be Drawn and Quartered." 

Logically enough, the purpose of the presentence re- 
port Is to give the judge a factual background on the per- 
son so he can tailor his sentence with wisdom and 
foresight. Unfortunately, the cop mentality that judges 
have extinguishes both of these qualities; If the report 
has any effect. It will be to justify in the judge's mind the 
imposition of a harsher sentence. The damaging effect 



28 



of a presentencing report can be particularly bad In the 
case of a plea bargain, where the heavlly-blased version 
of events in the report may be the judge's only source 
of Information about the case. Hitherto undisclosed 
allegations which the reporting officer has dug up are 
catapulted to prominence as sentencing criteria, and the 
defendant doesn't even have the opportunity to deny or 
explain them. Since plea agreements often allow the 
judge to choose from a range of penalties for the stip- 
ulated charge, this often results in the Imposition of the 
maximum penalty - all on the word of a minor func- 
tionary. 

In case you still nurse the Illusion that justice will surely 
be preserved In the end through the mature wisdom and 
human sensibility of the judge, pause and consider what 
the judge's background Is and where his Interests lie. He's 
a lawyer who earned his credentials by distinguishing 
himself in the public eye as a government cop, usually a 
prosecutor. He got his position through public recogni- 
tion, and if he's going to lose it, it will be for offending 
public sentiment. Any question In his mind about the 
severity of his sentences will therefore be resolved In 
favor of his own safety from possible adverse reaction,- 
and the safest way to go Is to "throw the book at 'em.'" 
This Is why It's so pathetic to hear about people who 
place themselves at the mercy of the court in the naive 
belief that it knows the quality of human kindness. That 
fatherly old gentleman who tells you that he has "a 
great deal of respect for people who are willing to step 
forward and admit their responsibility" is liable to show 
you just how much respect he has by awarding you 
three death sentences.* 

"The first thing we do, let's kill all the lawyers." 

William Shakespeare, ii Henry VI, Act iv. Scene 2, 
line 85 (1592) 



- 29 - 



Having briefly described what goes on in the trial 
court, it's worthwhile now to devote a few lines to the 
lawyers,- after all, they're the ones who run the place. 

The judge, whom you've already met. Is the head 
honcho. All the other lawyers and clerks in the court- 
room kowtow and fawn before him like vassals of a 
medieval king. They call him "Your Honor," and refer to 
"The Honorable Judge So-and-So" and his "Honorable 
Court," always being careful to capitalize the written 
words. Everybody rises when His Honor enters the 
courtroom. 

The most active players in the courtroom farce are the 
trial lawyers - the prosecutor and the defense counsel. 
The prosecutor is a cop who specializes in the legal as- 
pects of police work. The defense counsel is a private 
lawyer who's paid to represent the accused, although he 
might draw his paycheck from the government if the de- 
fendant can't afford to pay. The government keeps a 
stable of lawyers on contract for just such occasions - 
the "public defenders." They're usually youngsters or 
people who are new to the area and haven't yet built up 
a busy office practice of their own. 

AS you might imagine. It's in the best interests of a 
defendant to get a highly-skilled lawyer who has the 
time and motivation to give him the most vigorous de- 
fense possible. This is where money makes the differ- 
ence. The public defender is paid a very small fee for each 
case, so he's motivated to take on as many of them as 
possible and handle them in assembly line fashion. The 
heavy caseload of most courts makes it a virtual cer- 
tainty that he'll be overworked, and the only way he can 
keep up is by resolving a large percentage of his cases 
through plea bargains. The privately-paid attorney, on 
the other hand, can afford to apportion his time so as to 
allow him to develop an effective defense for his client 
and pursue It to the bitter end in court. Moreover, he's 
often socially in a position to pay off the judge, which 



30 



the public defender and his indigent ciient have neither 
the cash nor the connections to accomplish. A seven- 
teenth-century commentator once observed that "a 
man may as well open an oyster without a knife, as a 
lawyer's mouth without a fee,"' and it remains equally 
true today that a criminal defendant's hope for a 
favorable outcome will be directly proportional to the 
size of his banl<roll. 

Some foll<s would say that this is unfair — that every 
defendant should be entitled to the same high level of 
competency, attention, and care with his legal defense 
regardless of his ability to pay. For public relations 
purposes, certainly, the government and the legal pro- 
fession lil<e to entertain that impression. But the truth 
is that people are not guaranteed an equal level of re- 
presentation. The U.S. Supreme Court has declared that 
"a criminal trial is not a game in which the participants 
are expected to enter the ring with a near match in 
sidllS;"" every lawyer has to try his first case sometime, 
and the government doesn't care if it is your life that he 
ends up practicing with.^ 

we could attempt to do a detailed characterization of 
lawyers the same way we did of cops, but it really 
wouldn't serve a useful purpose here. It's sufficient, and 
probably a lot more interesting, to simply talce a looi( at 
what other folks have thought of lawyers down through 
history: 

Socrates (c. 400 B.C.) - 

"(He has) practiced deception and retaliation, 
and has become stunted and warped. And so he 
has passed out of youth into manhood, having 
no soundness in him,- and is now, as he thinks, a 
master in wisdom. Such is the lawyer, 
Theodorus."s 



31 - 



Jesus Christ (c. 31 A.D.) - 

"Woe to you lawyers also! for you load men 
with burdens hard to bear, and you yourselves 
do not touch the burdens with one of your 
fingers."^ 



Jonathan Swift (1727)- 

"You have clearly proved that ignorance, idle- 
ness, and vice, are the proper ingredients for 
qualifying a legislator; that laws are best ex- 
plained, interpreted and applied, by those 
whose interest and abilities lie in perverting, 
confounding and eluding them."8 



Oliver Goldsmith (1768) — 

"Lawyers are always more ready to get a man 
into troubles than out of them.''^ 



Samuel Taylor Coleridge (c. 1820) - 

"He saw a lawyer killing a viper 
on a dunghill hard by his own stable,- 
And the Devil smiled, for it put him in mind 
Of Cain and his brother Abel."^° 



- 32 



Henry Peter, Lord Brougham (c. 1840) — 

"A learned gentleman who rescues your estate 
from your enemies and keeps it to himself"^ 



Oscar Wilde (c. 1890)- 

"Lawyers have been known to wrest from 
reluctant juries triumphant verdicts of acquit- 
tal for their clients, even when those clients, as 
often happens, were clearly and unmistakably 
innocent."ii 



Carl Sandburg (c. 1930) - 

"Why is there always a secret singing 
When a lawyer cashes in? 
Why does a hearse horse snicker 
Hauling a lawyer away?"^' 



Grace Hibbard — 

"An Honest Lawyer" - book just out - 
What can the author have to say? 
Reprint perhaps of ancient tome - 
A work of fiction any way."" 

The Job of the court is to air both sides of a contro- 
versy and let the judge resolve it according to what the 
written law says (of which he professes to be the 
expert). There are big laws (such as the "Constitution"), 



- 33 



medium-sized laws (such as the "statutes"), and small 
laws (such as the "case law" that the courts themselves 
create). When there's a conflict between them, the 
bigger law is supposed to take precedence over the 
smaller one, and the party backed by the bigger law wins 
over his adversary. That's the way it's supposed to be, 
anyway. 

In practice the courts generally do their utmost to rule 
in favor of the government, even when the individual 
has the bigger law in his corner. They do this by twisting 
their reading of the law (a process known as "construct- 
ion") so that they can make it seem to say what they 
want it to say. They see nothing wrong with straining 
the words and stretching the meaning of the law when 
it suits their purpose.^* 

They're ail for playing by the rules as long as the 
government wins, but when those rules sustain the 
individual citizen the courts claim that it's not a game 
anymore, so they don't have to recognize them." That 
dualistic, black-and-white mentality that's so character- 
istic of the cop is at the bottom of this attitude. As one 
Supreme Court cop revealed, they see themselves as 
being charged with the twin purposes of "the conviction 
of the guilty and the vindication of the innocenf^i^ and 
to judge from recent rulings the functional corollary to 
this iron-heel principle is that "the end justifies the 
means.""/iV''9 

New laws that are likely to benefit the citizen are held 
to be non-retroactive so that prisoners can't use them 
to overturn their unfair convictions.^o yet new laws 
which support police endeavors are cheerfully given 
retroactivity.^^/" In matters where the courts have 
discretion, they invariably back the cops and rebuff the 
defendant; they'll go out of their way to slap him down 
if he's winning," but when the defendant comes begging 
for a smidgen of justice they'll tell him that it's not their 
job to do what's "prudent or appropriate, but only what 
is constitutionally compelled."^* 



34 - 



When a citizen Is confronted by the law in ail its tech- 
nical perplexity, It's common for him to exercise poor 
judgment out of Ignorance or mental Instability. Instead 
of observing common notions of fair play and an under- 
standing of human frailties, the court grasps this as an 
opportunity to pin the defendant down to the letter of 
the law. Unwise blunders, such as the maldng of incrim- 
inating statements and admissions of guilt, are wel- 
comed and encouraged by the courts,25/"/" and if a 
defendant further entangles himself in the govern- 
ment's web by foolishly giving away all his constitutional 
rights, that pleases them even more.^^ 

There are several different types of courts, but for the 
purposes of this bool< we shall consider only the three 
types involved with criminal cases — trial courts, appeals 
courts, and grand juries.^a 

Trial courts are where all the prosecutions and lawsuits 
take place, and they consist of two levels — the "limited 
jurisdiction courts" and the "general jurisdiction courts." 

A limited jurisdiction court is portrayed on the popular 
television program "People's Court." Various petty 
affairs are handled In these courts, and criminal matters 
are generally limited to misdemeanors that carry no 
more than a year in jail and a $1,000 fine. They're called 
by a number of names: Justice of the Peace Court, City 
Court, Municipal Court, Police Court, Mayor's Court, 
Magistrate's Court, and Claims Court. The judge runs a 
one-man show, so things tend to move along pretty 
quickly there. 

Although the ostensible mission of such courts Is to 
"Impartially apply the law," most of the city and county 
governments that run them are in fact dependent upon 
their ability to generate public revenues through fines. 
They also serve to Intimidate local citizens into desired 
patterns of behavior, and persuade drifters to keep on 
traveling. 

General jurisdiction courts are where the felony 
prosecutions and big lawsuits take place, and most of 



- 35 



them handle a few misdemeanor cases and appeals from 
limited jurisdiction courts as well. Federal ones are called 
"District Courts," whereas those which are run by the 
various states are known by names such as Superior 
Court, Criminal Court, Circuit Court, Chancery Court, 
Common Pleas Court, county Court, Recorder's court, 
and District Court. This is the l<ind of court portrayed in 
"Perry IVlason" episodes, with the jury, the battling 
lawyers, and all the other rigamarole that comes to mind 
when one thinks of a "trial." 

General jurisdiction courts don't actually sit to "impar- 
tially apply the law" in any more real sense than the 
limited ones dO; as we've discussed previously, they exist 
in order to assert the will of the government. By im- 
posing penalties on behalf of the cops, they protect the 
status quo for the ruling class. They dispatch as many 
folks as possible from the hands of the cops into the 
hands of the keepers, thus fueling the System with the 
bodies it needs to continue functioning. They intimidate 
citizens into snitching on others, thus expanding the 
range of police investigations. They also exert an intim- 
idating effect on the behavior of the general populace 
by deterring people from doing things that the govern- 
ment doesn't want them to do (which it labels as 
"crime"). 

if the parties aren't satisfied after a case has gone 
through trial, it might proceed on to the second major 
type of court — the appeals court. There's no jury in an 
appeals court; everything's done by lawyers and judges, 
and few real people ever witness what goes on there. 
Two levels of appeal exist - the "intermediate appeals 
court" and the "court of last resort." 

Intermediate appeals courts in the federal system are 
called the "Circuit Courts of Appeals," and there are 
thirteen of them around the country. Each one governs 
the federal law in a different region, most of which 
cover several states. The corresponding state courts are 
generally called "Courts of Appeals," although New 



- 36 



Yorkers had to be different by calling theirs the "Appell- 
ate Division Supreme Court." 

When state appeals aren't settled at the intermediate 
level, they might go on to the state's court of last resort, 
which is generally called the "State Supreme court" 
(except by those contrary New Yorkers, who persist in 
calling theirs the "Court of Appeals"). The federal version 
of the court of last resort is the "United States Supreme 
Court" in Washington, D.C. Through the decree of its nine 
judges, who are called "Justices," it has the final word 
over all the other courts, both federal and state. 

The third type of court we're going to discuss is the 
grand jury. Actually it isn't a separate type at all, but is 
rather an arm of the trial court. Since it functions al- 
together differently, however, we need to draw the 
distinction. Theoretically it's a panel of citizens with a 
power which is independent of both the cops and the 
courts; its power comes directly from the peopie.'o it was 
originally instituted in the American colonies so that no 
backbiting neighbor could get a person brought up on 
criminal charges without substantial grounds. The grand 
jury would review a criminal complaint in order to 
determine whether there was really anything to it. If 
there wasn't, the matter would go no further,- if it 
seemed to have merit they would issue an "indictment," 
which gave the cops the green light for their pro- 
secution. 

Lawyers being as they are, it didn't take them long to 
learn how to manipulate the grand jury to their own 
purposes, it's responsive to the prosecutor to the extent 
that he determines what witnesses to call and who 
examines them.'^ It's responsive to the court to the 
extent that it depends upon the court to compel the 
production of the witnesses and evidence.'^ since he's 
the central figure in the grand jury investigative process, 
the prosecutor can thus orchestrate the proceedings so 
that he, and not "the people," will make the prosecutive 
determinations.^^ As Justice William 0. Douglas has said, 



- 37 



"It is, indeed, common l<nowledge that the grand jury, 
having been conceived as a bulwark between the citizen 
and the Government, is now a tool of the Executive"'^ 
(Which means the cops). Similarly, another commentator 
has observed that "this great institution of the past has 
long ceased to be the guardian of the people for which 
purpose it was created at Runnymede. Today it is but a 
convenient tool for the prosecutor - too often used 
solely for publicity. Any experienced prosecutor will ad- 
mit that he can indict anybody at any time for almost 
anything before any grand jury.'''^ 

Not only is it a good "rubber stamp" for getting prose- 
cutions started, but it's also better than thumbscrews 
for getting information out of people. This angle will be 
discussed more thoroughly in Chapter 14, but as a quicl< 
illustration consider the approach taken by the Nixon 
administration when it took over. Attorney General John 
iviitchell instructed all the federal prosecutors around 
the country to cooperate with the F.B.I, by directing 
their federal grand juries to subpoena people who 
refused to talk to investigators. These people had a right 
to refuse to talk to the F.B.I., but once they were 
brought into court before a grand jury, they could be 
forced to choose between talking and going to jail.^^ 



REFERENCES 

1. Dunne, Finley Peter, "On Expert Testimony," Mr. 
Dooley in Peace and in War, 1 898 

2. Stricidand v Washington, _US_, 104 SCt 2052, 2057- 
2058(1984) 

3. Holyday, Barten, Technogamia, ii, 5 (c. 1640) 

4. U.S. vCroniC, _ US_, 104 SCt 2039, 2045-2046 (1984) 

5. /Ct, 104 SCt at 2050 



38 - 



6. Quoted by Bob Boze Bell in New Times, March 16-22, 
1983, pp. 14-15 111 W. Monroe, Phoenix, AZ 85003 

7. Luke^^■A6 

8. Gulliver's Travels.- Voyage to Brobdingnag 

9. The Good Natured Man, Act iii 

10. The Devil's Thoughts, St. 4 

11. The Decoy of Lying 

1 2. The Lawyers Know Too Much 

13. Books Received, quoted by Burton Stevenson in The 
Home Book of Quotations, Dodd, Mead & Co., NY, 1947, 
p. 1091 

14. Uiimann V U.S.. 350 US 422, 433, 76 SCt 497, 504 (1956) 

15. McCuire V U.S., 273 us 95, 99, 47 SCt 259, 260 (1927) 

16. Florida v Royer, 460 US _, 103 SCt 1319 (1983), J. 
Rehnquist dissenting 

17. Seguravu.S, _US _, _sct (1984) 

18. US. VLeon, _ US_,_SCt_ (1984) 

19. New York v Ouarles,_US_. 104 SCt 2626 (1984) 

20. state ex rel Collins v Superior Court, Etc., 132 AZ 180, 
189-190, 644 P2d 1266, 1275-1276 (1982) 

21. State vEspinoza, AZ Sup. Ct., 2/22/84 

22. Ramia v state, Md. Ct. Spec. Appls., 3/1/84 

23. Florida V Meyers, US_, 104 SCt 1852, 1855-1856 (1984), 
J. Stevens dissenting 

24. as. V Cronic 104 SCt at 2050, n. 38 

25. Michigan V MOSley, 423 US 96, 108-109, 96 SCt 321, 329 
(1975), J. White concurring 

26. Dunaway v New York 442 US 200, 222, 99 SCt 2248, 
2261-2262 (1979), J. Rehnquist dissenting 

27. us V Washington, 431 US 181, 187, 97 SCt 1814, 1818 
(1977) 

- 39 - 



28. Edwards v Arizona, 451 US 477, 489, 101 SCt 1880, 1887 
(1981), J. Powell concurring 

29. National Survey of Court Organization, U.S. Depart- 
ment of Justice, Law Enforcement Assistance Admin- 
istration, U.S. Government Printing Office, Wasiiing- 

tOn,DC(1973) 

30. in re Aprii 1956 Term Grand Jury, 239 F2cl 263, 268-269 
(7th Cir. 1956) 

31. 7776 Grand Jury as an investigatory Body, 74 Harv. L 
Rev., 590, 596(1961) 

32. U.S. V Caiandra, 414 US 338, 346 n. 4, 94 SCt 613, 619 n. 
4(1974) 

33. Proceedings of the 36tti Annual Judicial Conference of 
the District of Columbia Circuit, 67 FRD 513, 538 (1975), 
Seymour Clanzer 

34. as. V DioniSiO, 410 US 1, 24, 93 SCt 764, 777 (1973), J. 
Douglas dissenting 

35. Delays in Criminal Cases, 55 FRD 225, 253 (1973), J. 
Campbell 

36. Harris, Richard, Freedom Spent, Little, Brown & Co., 

Boston, 1976, p. 392 



40 - 



Chapter 4 



THE KEEPERS 




"'All hope abandon, ye who enter here.' 

Such characters, in color dim, I mark'd 

Over a portal's lofty arch Inscribed." 

Dante Alighieri, The Divine Comedy, Inferno, 
Canto III (1321) 



After the court is through with him, the person is no 
longer the same human being that he was when he went 
in. He's been transformed through the legal process from 
a "decent," esteemed citizen to a loathsome convicted 
felon. He may not lool< or feel different at first, but the 
effect of this process on his life will ultimately prove to 
be as drastic as any "altered state" that Paddy Chayefsky 
ever dreamed up. 

Those supposedly "inalienable" rights to life, liberty, 
and the pursuit of happiness have been dispatched with 
an ease that betrays the hollowness of their promise. A 
new standard of civil rights is applied in their stead, 
giving the unfortunate person a status somewhere 
between that of a farm animal and a human being — just 
about the same as that which was enjoyed by the slaves 
prior to the Civil War. The convict, in fact, is the twen- 
tieth-century version of the plantation slave; he's owned 
by the government rather than a private individual, and 
he often has a fixed release date to look forward to, but 
otherwise the comparison is a fair one. He's little more 
than government livestock. The Thirteenth Amendment 
to the Constitution, which supposedly abolished slavery, 
admits as much: "Neither slavery nor involuntary servi- 
tude, except as a punisfiment for crime whereof the 



43 



party shall have been duly convicted, shall exist within 
the United States, or any place subject to their juris- 
diction."^ 

Regardless of his prior accomplishments and expertise, 
the convict is considered unworthy of credibility or re- 
spect. It's as though the court's ritual has effectuated 
some magical spell with the power to eradicate every- 
thing in his life except the fact that he's been convicted 
of a crime, it's that same old dualistic cop mentality at 
work; you're either a "good guy" or a "bad guy," and once 
they've labeled you as the latter your credibility is shot. 

What they do with the convict will depend upon many 
factors, such as the nature of the crime, the amount of 
publicity it generated, the particular state having juris- 
diction, and whether or not the judge has been "fixed." 
Basically it will fall into one of two categories — proba- 
tion or Incarceration. In some cases fines and forfeitures 
might be imposed in addition to either of these cat- 
egories. 

Probation is the most lenient sentence a judge can 
hand out. it means the convict can go home, just as 
though he'd been acquitted; there are strings attached, 
however. Any number of terms and conditions can be 
applied, and if the person screws up and violates one of 
them he can be sent directly to prison. Probation is a 
form of supervision, and a special type of cop called a 
"probation officer" is assigned to ride herd over the 
person. These cops wear plain clothes and pretend to be 
social psychologists, but they're phonies; their real job is 
solely to keep tabs on the probationer, and the sum of 
what they know about psychology comes from watch- 
ing "The Bob Newhart Show." One could search the 
corridors of government for a long time before finding 
a more useless bureaucrat than the probation officer. 

Probation Is uncommon; the usual destiny of the 
convict is incarceration, and for this there are two 
distinct types of facilities - jail and prison. 



- 44 



AS you'll recall, misdemeanors that are tried in courts 
of limited jurisdiction are only subject to sentences of a 
year or less, and the local jail is used to consummate 
these penalties. Jails are typically filthy and inadequate 
for housing people (or animals either, for that matter). 
They're often poorly heated, overcrowded, and devoid 
of luxuries like mattresses, pillows, and blankets. The city 
and county police departments which operate them are 
always anxious to lock folks up, but are too cheap to 
spend the money that it takes to care for them properly. 
They couldn't care less if you have to sleep on the floor 
and go without bathing for a few days. They're not in- 
terested in the worries and frustrations that you're like- 
ly to be suffering after having just been locked up —like 
what's happening to your family and your business, and 
why your lawyer hasn't been in to see you. Once they 
have you filed away in a cell, they can more or less ignore 
you until somebody on the outside summons you for a 
visit or a court appearance. 

Those local citizens who have enough clout to force 
the cops to run a humane jail rarely do so; they're more 
likely to draw heat down on a kennel or stable which 
mistreats animals than to focus attention on a jail where 
people are abused. The politicians and other "good" 
citizens of the community have little empathy for folks 
who wind up in jail,- they assume that such people 
probably deserve a little discomfort, and dismiss the 
problem as being one of only temporary abuses anyway. 
i\/iost folks are only housed for a few days, and those who 
do stay for longer periods of time tend to be derelicts 
and poor people whose opinions count for little with the 
politicians. The whole subject of the caretaking of jail 
detainees is too sordid for most "decent" citizens to 
want any part of anyway. 

The principal type of institution used by the keepers is 
the prison. This is a large warehouse type facility which 
is run by state or federal cops for the purpose of holding 
convicted felons for long periods of time. Colloquially it's 
referred to as "the joint," "the slammer," or "the big 



- 45 



house," and some of them have been affectionately 
nicknamed according to their peculiar geographical 
features ("The Rock" "up the river"). 

What the physical features of a prison consist of will 
depend upon which level of security one wants to 
consider — most prison systems have four of them. 

For people who are under the death sentence, and 
others who are considered to be especially desperate or 
dangerous, there's "Supermax." The security there is the 
tightest of anywhere in a prison system. Each prisoner 
is kept in a separate cell, and he generally only leaves it 
for a few minutes of exercise or to shower a couple 
times per week. If somebody comes to visit him, they 
have to talk to each other from either side of a partition, 
because there's no physical contact allowed. Prisoners 
might be allowed to do certain hobbies in their cells, such 
as painting, but there's really very little for them to do 
or look forward to in Supermax. Aside from providing a 
"death row" for those who are awaiting execution, 
facilities such as this are used to house people whom the 
prison administration has singled out for special punish- 
ment. The isolated environment occasioned by the 
heavy security measures provides the guards with an ex- 
cellent opportunity to work prisoners over without wit- 
nesses, and the lower quality of life there compared to 
other parts of the prison system is itself a continual 
form of punishment. 

The next lower category is "Maximum Security," which 
is the stereotyped facility shown in prison movies such 
as Stir-Crazy and On-The-Yard. Prisoners live in huge 
buildings called "cellblocks" containing a hundred or more 
cages, and they work at various jobs within the com- 
pound, such as doing laundry, preparing meals, or making 
license plates, unlike supermax, they get to socialize, 
walk around outside, and take part in various activities 
such as athletic events, educational classes, church, etc. 
When people come to visit, they're allowed to sit at 
tables in the same room with the prisoners. Encircling 



46 - 



the maximum security unit there's aiways a high waii or 
fence fortified with razor wire and interspaced with 
towers where rifle-toting guards are stationed. 

iViany prisons have a third levei of custody called "Med- 
ium Security," where the prisoners live In dormitories 
instead of barred cells. The freedom to walk around and 
participate in recreational activities is generally greater 
than in iviax, and there might not be any gun towers, but 
the fence and razor wire are still there. 

The least oppressive custody level in a prison is "iviini- 
mum Security," where there are neither fences nor gun 
towers (an improvement which does wonders for a 
prisoner's morale). Those who are housed in such facilities 
are called "trustys," and they often work in nearby com- 
munities with little or no supervision by prison staff. 
When outside visitors come to see them, they can spend 
several hours together having a picnic on the lawn, and 
some prisoners even get to go home on short furloughs 
every so often. 

Regardless of whether a person is housed in a super- 
max, maximum, medium, or minimum security unit, he's 
subject to certain standard deprivations because he's a 
prisoner. It's a level of repression that insidiously dam- 
ages the psyche and warps the personality, ultimately 
with unfortunate consequences for society. Restrictions 
on freedom can take various forms. 

There are many things you simply can't do when 
you're in prison — things which may be important to 
your mental, spiritual, or physical well-being. You can't 
travel or get around to the businesses and institutions 
you need to see in order to handle your personal affairs. 
You're deprived of an opportunity to do your own line 
of work, and instead are forced to do some meaningless 
scut work for little or no pay. You're separated from 
your family, and the loss of your personal and financial 
impact on their lives usually results in the decay of the 
relationship. You're denied a normal sex life. Some medi- 
cal and dental services are not furnished to prisoners. 



47 - 



and you can't choose your own doctor or seek a second 
opinion. There's no stability in your life because you can 
be moved away at any time, regardless of any plans or 
friendships you may have made. You can't have certain 
worldly pleasures that you may be accustomed to, such 
as booze, fine foods, custom tobaccos, and clothing of 
your choosing. Recreational diversions which are usually 
disallowed in prison Include shooting, flying, motoring, 
swimming, photography, martial arts, computers, and 
animals. 

Regimentation is the order of the day,- you're locked 
up, let out, fed, showered, counted, and turned out for 
exercise according to schedule, just like dairy cattle. 

There's no such thing as privacy. They censor your mail 
and reading material, listen In on your phone conversa- 
tions, and search your property when they feel like it, 
confiscating whatever they please. They force you to 
strip naked so they can search your body and clothes, 
and they constantly watch you, whether you're work- 
ing, lying in bed, taking a shower, or on the toilet. 

You're forced to live constantly with unpleasantness. 
You sleep In cramped quarters on an uncomfortable bed, 
breathing stinky, smoky air, and trying to Ignore the 
noise of loudmouths and morons who think that the 
whole world wants to hear what they're playing on their 
radios. You have to put up with all kinds of ignorance and 
irritation. Including frustration and discouragement 
from prison administrators, and stupidity and disrespect 
from churlish guards. 

Prison systems are big business; it requires the invest- 
ment of huge sums to build the facilities, and even bigger 
sums to operate them. There are 6,661 of them now, and 
they hold nearly 724,000 people.^ At the cost of between 
$25,000 and $125,000 to build each cell, and between 
$7,000 and $30,000 per year to keep each prisoner In It, 
this mounts up to one hell of a lot of bucks.^ 

Between 1970 and 1980 the yearly expenditures on 
prison construction in America rose from $74 million to 



48 



$450 million, and by 1982 they had doubled to $946 
million. There are currently 717 new prisons and jails 
under construction in this country, and at that cost of 
over $5.6 billion, that should be sufficient to allow them 
to locl( up another 132,829 people more than they have 
room for now. California alone plans to spend $1.2 billion 
on prisons during the next five years,- it has its heart set 
on doubling the size of its prisoner herd within that 
period.^ 

Building the prisons is only the beginning of the scam; 
it provides a healthy boost to the private economies of 
certain individuals, to be sure, but the real dividends 
come from their operation after they're built. It takes 
numerous guards, maintenance, medical, and food per- 
sonnel, industrial managers, secretaries, and admini- 
strators to adequately featherbed a prison operation. 
There are 40,000 of them that belong to one union 
alone.^ All these salaries come out of tax revenues, so 
they don't have to be justified by the demonstration of 
profits, as would be the case with a legitimate business 
enterprise. At various junctures along the line many of 
the operational funds are diverted into private pockets. 
All told, it can be a pretty sweet deal for a lot of people. 
The state of Arizona has evidently found it to be so,- its 
annual prison budget of $27 million in 1979 has leaped to 
five times that amount over the past five years« (Ari- 
zona has added a fifth "C" to its list of major industries: 
Cattle, Climate, Copper, Cotton, and Convicts^. It's esti- 
mated that the operating costs for those 100,000 new 
prison beds which are currently under construction will 
end up costing the taxpayer some $70 billion over the 
next 30 years.^ 

Realizing how lucrative this racket is, even private 
companies have started to get on the bandwagon. A 
firm out of Nashville called the Corrections Corporation 
of America has opened up a 350-bed prison in Houston, 
while another one, Buckingham Security, Ltd., is building 
a 722-bed facility near Pittsburgh. These companies 
provide the whole "prison package" for federal or state 



49 



governments that wish to contract prisoners out to 
them. The feds aione are currentiy spending $21 miiiion 
per year for the use of privately-run prison facilities-^ 

After a person has done his time and gets out of 
prison, the System stili isn't through with him - not by 
a long shot, iviost prison systems have early release 
programs called "worl< furlough," whereby the prisoner 
goes to live in a "halfway house" and works during the 
day at a regular job. Halfway houses are dormitories 
operated by the prison administration, and the residents 
have to follow most of the same rules as when they 
were in prison. The government mal<es a double-barreled 
killing off this scam: it gets operational funds from tax 
sources, since it's part of the prison system, and it gets 
a big chunk of the prisoner's earnings as well. Actually 
the prisoner is still technically "in custody," and he can be 
jerked right back to the joint for the slightest infraction. 
Parole is a less tightly-controlled program whereby the 
prisoner signs an agreement to abide by a number of 
conditions in return for being allowed to live and work 
in the community. These conditions include frequent 
visits to a "parole officer," who can be described in much 
the same language as the probation officer. More 
government payrolls are added at this point by supply- 
ing the ex-con with a variety of "counseling services" 
which he's forced to accept "for his rehabilitation." A 
person who's on parole doesn't have the rights of an 
ordinary citizen, and if he violates one of the conditions 
of release prior to the expiration of his term he loses 
credit for all the parole time he did on the street. A per- 
son with a ten-year parole term could do nine years of 
it without a hitch, and then be jerked back into prison to 
do the whole ten years all over again just for drinking a 
beer! 

All these people who fulfill the role of the keepers — 
probation officers, jail and prison personnel, admini- 
strators, parole officers - are basically cops. They're 
motivated by the same love of government, the same 



50 



crusade against "evil," and the same play of egos that 
characterize the street cops. 

in the case of the l<eepers, their fondness for govern- 
ment work is even more likely to be a result of laziness 
than with street cops. Prison jobs are much easier to get 
than police commissions, and as often as not, the pro- 
spective prison guard is simply looking for steady work 
that's close to home. Prison work is easy job security 
that requires no real skills. People who become prison 
guards are generally a calibre of individual that would 
have washed out of a real police academy, iviost of them 
are fat, misshapen, or impaired by various other physical 
handicaps, and invariably lack the capacity for original 
thought. 

The keepers see themselves as members of a team 
fighting the battle against evil. Their job is to isolate, 
punish, and rehabilitate the bad guys, while simul- 
taneously satisfying society's thirst for retribution and 
deterring similar conduct in the future, in a word, they 
think they're correcting society's problems, so they 
prefer to call themselves "correctional officers." 

Their ego problems are as bad as those of the police, 
but they're a much more cowardly breed of cop; they 
know that their captives have been stripped of all 
weapons and are incapable of effective resistance, and 
those are the kinds of odds that appeal to them. 

The upper-eschelon keepers who run the prison sys- 
tems have attempted to legitimize what they're doing 
by rhetorically elevating it to the status of a science, 
which they call "corrections." Some of them have even 
acquired a title of Ph.D. in the endeavor to pass them- 
selves off to the public as professionals,- presumably they 
have to justify their exorbitant salaries somehow. Once 
you've cleared away all the blarney, however, the plain 
fact is that a slaver by any other name is still nothing but 
a slaver. These guys aren't practicing a "science" any 
more than Adolph Eichmann or Klaus Barbie were. One 
of the so-called "doctors of corrections" recently 



51 



revealed his level of sensitivity and understanding of 
prisoners when he quipped that a person who's housed 
in Supermax is "making $20,000 a year" (which is the 
amount of money it costs the state to keep a man caged 
up in that particular hellhole).^ With such a lack of insight 
into the human mind by those who are supposed to be 
in the know, one can hardly be optimistic about the 
attitude and philosophy that their subordinate goons 
are likely to exhibit. 

The people of the legislature play their part in the pris- 
on system scam as well. Crime is always a hot issue, and 
some lawmakers rally much of their constituency from 
the ranks of the meek and the terrified. Such legislators 
can be counted on to back the steady expansion of an 
oppressive prison system, one such lawmaker from 
Arizona recently showed her level of concern for state 
prisoners by suggesting "if some of those swamp coolers 
would break down, that might get rid of some of our 
prison population." When asked to clarify herself, the 
good woman replied, "What I meant was that if some of 
the coolers were to break down or come unplugged, it 
would make them rather uncomfortable. Or maybe it 
would just smother them to death."^ 

After probation, incarceration, fines, forfeitures, and 
post-release supervision are all behind him, the convicted 
person will continue to suffer a form of punishment 
through the lose of various rights. Some of them are 
cancelled through official decree, while others simply 
disappear by social prerogative. 

There are federal laws foreclosing such things as the 
right to be a juror,^ deal in firearms,^ (indeed, even to 
possess one),^° or hold office at a bank." If the person's 
conviction pertained to an abuse of trust or an act of 
treason, they have statutes making him ineligible to 
work for the governments^ and there are various agen- 
cy regulations which declare that any conviction elimi- 
nates him from consideration. Certain government 
f reebies may also be withheld from an ex-con: depending 



52 - 



on the type of crime he was convicted of, he might lose 
his Veterans' or federal retirement benefits," his entitle- 
ment to educational assistance,^" or his bed at the Old 
Soldiers' Home." 

State laws exact a toll in lost civil rights as well. They 
can deprive the ex-con of his right to vote," hold public 
office," or practice his profession." 

Unofficial suppression of an ex-con's rights and privi- 
leges in society can be extremely hurtful. Once the credit 
bureaus lock the conviction into their memory banks, 
that information becomes forevermore accessible to 
creditors, banks, employers, unions, and other organiza- 
tions. The effects of this on a person's candidacy for 
loans, job applications, etc. should be obvious. Social or- 
ganizations are frequently loathe to admit an ex-con 
into their membership, and general popular prejudice can 
wind up stinging him in countless unforeseeable ways. 
Police will jump on with all fours whenever an ex-con be- 
comes suspected in connection with a crime, and there's 
a standing presumption of guilt that he must struggle 
against in his efforts to get bail and defend himself. 
Truly, the Curse of the Keepers haunts a person long af- 
ter he has left the prison walls. 



REFERENCES 

1. The united States Constitution, Amendment Xlii, 
Section 1 (1865) 

2. Jericho, Newsletter of the Unitarian universallst 
Service Committee National Moratorium on Prison 
Construction, No. 34, 1984, p. 12 (309 Pennsylvania Ave. 
S.E., Washington, DC 20003) 

3. Corey, Bruce & Cettinger, Stephen, Time to Build? The 
Reaiities of Prison Construction, The Edna McConnell 
Clark Foundation, 1984, p. 15 

4. id. at p. 7 



53 



5. Gest, Ted, "Prisons For Profit: A Growing Business," U.S. 
News & world Report, July 2, 1984, pp. 45-46 

6. La Roca, Magazine of the Arizona State Prison, vol. 10 
No. 3, May-June 1984, pp. 9-10, quoting James G. 
RIcketts, Ph.D., Director (PO Box 629, Florence, AZ 
85232) 

7. New Times, vol. 14 No. 74, January 5-1 1, 1983, p. 2, 
quoting Arizona state legislator Jane D. Hull (ill W. 
Monroe, Phoenix, AZ 85003) 

8. Title 28 u.s.c. section I86i (i) 

9. Title 18 U.S.C. Section 922 (g) 

10. Title 18 U.S.C. Appendix, Section 1201 et seq. 

11. Title 12 U.S.C. 1730 (h)(1) 

12. Title 18 U.S.C. sections 593, 1901, 2071, 2381, 2383, 2385, 
and 2387 

13. Title 5 U.S.C. Section 8312; Title 38 U.S.C. Section 3505 

14. Title 42 U.S.C. Sections 1862 & 2459, notes re campus 
disrupters 

15. Title 24 U.S.C. section 50 

16. Richardson v Ramirez, 418 US 24, 56, 83 n. 27, 28, 94 SCt 
2655, 2672, 2685-2686 n. 27, 28 (1974), J. Marshall 

dissenting 

17. E.g. Arizona Revised Statute (A.R.S.) 13-904 

18. E.g.A.R.S.32-1422(A)(4) 



54 



Chapter 5 

THE 
CONSTITUTION 




55 - 



So, what's the point in worrying about aii this? If a per- 
son can be abducted by the cops, railroaded through the 
courts, and cast into bondage for exploitation by the 
keepers, isn't it all rather hopeless? What possible chance 
could one mortal have of resisting the imperious will of 
the State with all its well-greased organizational machin- 
ery, limitless funds, armies of specialists, and the support 
of the people to back it up? Isn't the government holding 
a// the cards? The answer is no... not here and now, 
anyway, in this country there's a trump card left to the 
individual that makes the critical difference between life 
under our system and that under the Commissars,- we 
have the United States constitution, it pre-empts all the 
other laws that the bureaucrats and power-players keep 
devising to impose control over our lives, it is, as the 
courts acknowledge, "the fundamental law of the land."^ 

Every American child learns about the Constitution at 
school; and what a royal bore it is at the time! They tell 
the kiddies a stirring tale about how some old men wear- 
ing wigs and knickerbockers and three-cornered hats 
wrote this famous document so that we could all live 
happily ever after. The kids don't relate to any of this, 
of course. They fail to realize its relevance to modern- 
day life, and as the years go by they grow into adults 



57 - 



who know that they have "constitutional rights," but 
don't l<now exactly what that means. "I know my rights" 
and "You can't do this to me" are boasts that quickly leap 
to the lips of the average citizen when he's confronted 
by the discretionary power of the police. The unfortu- 
nate truth is that people don't know their rights... and 
the ones they do know they either give away or fail to 
assert. Trusting as they do in the fairness of the System, 
they soon discover that they've misplaced their faith, 
and that it's too late to avoid disaster. Such is the 
tragedy that this book seeks to prevent,- its purpose is to 
spell out for the average person (1) precisely what rights 
he has against the police, (2) how to use them to avoid 
trouble, and (3) how to use them to get out of trouble 
if the unthinkable does occur. 



HOW THE CONSTITUTION WORKS 

Without launching into a tiresome discussion of civics, 
on which too many books have already been written, a 
few words must be devoted to placing the Constitution 
into perspective with the other laws. As the "fundamen- 
tal law of the land," the Constitution is the highest order 
of authority that we have. It is, in effect, the charter 
that lays down the ground rules for all the other laws, 
and in that way it determines how our society is organ- 
ized. If a theological metaphor may be forgiven, it's our 
Ten Commandments. Nobody questions it - not the 
F.B.I... not the Supreme Court... not the President... not 
even the phone company. 

Unfortunately, it's one thing to acknowledge the 
Constitution and quite another to obey it. This is so be- 
cause the Constitution is a law without penalties. The 
laws that do have penalties attached to them are called 
"statutes," and someone who gets caught violating one 
of those can be charged a fine or sent to the pokey (or 
both). Besides the Constitution and the statutes, there's 



58 



a third kind of law called "case law." Every time someone 
is dragged into court, whether for violating one of the 
statutes or to settle a dispute, the court has to make a 
decision; who's right, and who's wrong? To punish or not 
to punish - that is the question. Once it makes its mind 
up, that's called a "holding" or "decision," and it becomes 
"case law." The next time a case just like that one comes 
in, they don't have to go through all the same reasoning 
again,- they're supposed to use the same decision the 
earlier court made. 

When the First Congress wrote the Constitution, the 
idea was to let the legislators and the judges be the ones 
to set any penalties for violating it.^ Since it was the 
public officials that the Constitution was designed to re- 
strain, it's no surprise that they've done very little in the 
way of establishing punishment for violators. Occupants 
of one branch of the government tend to characterize 
their colleagues in other branches as honorable, just, and 
possessed of praiseworthy intentions (like themselves). It 
must seem unthinkable to them that their official breth- 
ren would ever be guilty of wrongdoing. 

Nevertheless, there are a few measures by which our 
constitutional protections can be enforced. An example 
of a statute that's been created for this purpose is Title 
18 U.S.C. Section 2511,- it provides for a fine of up to 
$10,000 and/or a prison term of up to 5 years for vio- 
lating a person's privacy with unauthorized electronic 
surveillance. An example of case law that's been devel- 
oped to enforce the Constitution is the famous "exclu- 
sionary rule." It jthreatens the violator with none of the 
standard kinds of punishment, yet its unique penalty has 
become one of our most important means of protection 
from the System, it's the key to the strategy laid out in 
this book, so it needs to be thoroughly understood. 



59 



THE EXCLUSIONARY RULE 

This subject is a current "liot potato" in the law en- 
forcement field. The Reagan Administration hates It, the 
Supreme Court's trying to erode It, and the criminal 
defendant needs it. it's been a subject of controversy 
ever since its birth In 1914, but the Draconian mentality 
of the Moral Majority has recently focused a rising level 
of censure against It. Law-and-order buffs complain that 
it offends their notion of justice. Police lament because 
It diminishes their conviction rates and forces them to 
think before they act. 

A series of landmark Supreme Court cases^/v* has for- 
malized a rule that, when police acquire evidence against 
a person by violating his constitutional protections, they 
shouldn't be allowed to use It to convict him. The pro- 
tections we're talking about here are our rights of pri- 
vacy and security under the Fourth, Fifth, Sixth, and 
Fourteenth Amendments to the constitution. The 
Fourth forbids unreasonable searches and seizures (of a 
person, his home, or his belongings); the Fifth prohibits 
the forcing of a person to give testimony against him- 
self; the sixth protects a person's communications with 
his lawyer; and the Fourteenth guarantees that the 
state government will give the defendant a fair shake 
when it prosecutes him. If the cops step out of line In any 
of these areas in order to "get the goods" on somebody, 
the exclusionary rule says that the evidence they ac- 
quire from It can't be used. Even If It proves conclusively 
that he's guilty, and there's no way of getting another 
shot at him, the tainted evidence must be barred, or 
"suppressed" from the courts. 

Such evidence might consist of tangible articles,^ such 
as drugs or weapons; an Incriminating statement or con- 
fession made by the suspect;^/' testimony of the officers 
concerning things that they have seen^ or heard^ as a 



- 60 



result of their unlawful intrusion; or testimony of eye- 
witnesses concerning their identification of a suspect.i° 
None of these types of evidence may be used in any way 
to convict a person who's been harmfully victimized by 
unconstitutional police conduct;^^ not as direct evidence 
in his trial... not as grounds for arrest... not even as 
grounds for a search warrant. Moreover, if the police 
exploit an unlawful intrusion by gathering leads that 
direct them to further evidence, that too is subject to 
suppression; it's known as the "fruit of the poisonous 
tree" because it grew directly out of an initially illegal 
act." 

The purpose behind the exclusionary rule is to deter 
the police from violating the average citizen's constitu- 
tional rights," although there don't seem to be adequate 
studies to substantiate its effectiveness in doing so.^* 
When the court refuses to admit tainted evidence it 
weakens the prosecutor's case, and in losing the convict- 
ion he's losing out on press mileage that he needs for 
furthering his political career. He vents his spleen onto 
his police subordinates, and the blundering patrolman 
ends up with a tongue-lashing from the Captain and the 
removal of his name from the Officer-of-the-Month 
competition, in cases where their disregard of the 
citizen's rights failed to turn up any incriminating 
evidence, the police might even find themselves on the 
wrong end of a civil lawsuit. 

Although it's been said many times that this exclusion- 
ary rule exists for the benefit of the guilty and the in- 
nocent alike, V" the basic intent behind It doesn't focus 
on the suspect at all. Its real purpose is to maintain the 
people's trust in government.^^ Nobody really cares 
whether the criminal gets a fair shake or not; indeed, 
there are many who believe that he deserves a raw deal. 
The concern lies in dispelling the idea that the courts are 
in an unholy partnership with police lawlessness. Govern- 
ment can continue to hold the status quo only as long 
as it maintains its credibility with the general public. The 
"imperative of judicial integrity"^ that the courts estab- 



- 61 



lished by refusing to become a party to constitutional 
violations served to assure the common folk not only 
that they wouldn't be rousted about in Gestapo fashion, 
but also that the courts were above the inconstancy of 
men's discretion. In recent years, this noble concept of an 
imperative of judicial integrity has been discarded by the 
Supreme Court behind the claim that only the deterrent 
effect justifies excluding evidence-^/^^ perhaps this is 
just an admission that the Court itself no longer has the 
judicial Integrity that it used to have. At any rate, it's the 
Indirect protective effect on the millions of innocent 
citizens that makes the courts willing to allow an oc- 
casional outlaw to walk away free. 

The exclusionary rule is not a fundamental constitu- 
tional right that automatically goes into effect when- 
ever anyone's constitutional protections are violated.^V 
20 The only person who can claim the right, or "standing," 
to Invoke it is the very one whose constitutional rights 
have been transgressed.^^ Moreover, he can only block 
the use of the evidence against himself, not its use 
against other parties. For example, a man can't use It to 
suppress evidence against him that was Illegally obtained 
from his crime partner; true, it's dirty evidence, but the 
only one who has a legal gripe against it Is the crime 
partner. It was his crime partner's constitutional rights 
that were disrespected, not his own, and except In 
narrow circumstances where their privacy rights are co- 
extensive (such as a private conversation at one of their 
homes),22 such a man cannot invoke the exclusionary 
rule. In order to keep objectionable evidence from being 
used, a "motion to suppress" should be raised sometime 
before the trial. This requirement of a "timely objection" 
was set down to prevent duplication of effort and 
wasted time in court,^' but exceptions to it can some- 
times be made.2« 

Courts, consisting as they do of confirmed advocates 
of the System who generally feel compelled to join in the 
fight against Evil, have developed many ingenious ex- 
cuses for denying the use of the exclusionary rule. It does 



62 



not apply, for instance, to any proceeding other than a 
criminal trial; grand jury hearings^^ and civil tax proceed- 
ings^'> are acceptable arenas for unlawfully acquired evi- 
dence. Neither does it apply in a variety of criminal trial 
contexts where the High Court's specious logic has 
managed to finesse a way around it. If the act of police 
misconduct is followed by enough intervening events, in- 
dependent circumstances," or lapse of timers before 
leading to the actual evidence, it might be determined 
that the causal connection has been either broken or so 
attenuated as to "dissipate the taint."^^ such a rational- 
ization gives small consolation to the defendant, who 
l<nows only that, if it weren't for the violation of his 
rights, the cops never would have gotten the evidence 
against him. 

Another subterfuge that neutralizes the exclusionary 
rule is the demonstration of an independent source of 
access to evidence that was unlawfully obtained.^^ Ac- 
cording to this proposition, the evidence that the police 
illegally acquired might have been gotten lawfully by 
another means if they had thought of it, which they 
didn't, so it's okay to use it. Now, doesn't that make 
perfect sense? Similar in logic is the "inevitable discov- 
ery" exception, which reasons that If the government 
hadn't trampled over a person's rights to get its evi- 
dence, it probably would have found it sooner or later 
anyway.28 

For some unfathomable reason, a live witness is con- 
sidered an exception to the rule of excludable evidence," 
even though such testimony would never have existed 
but for the illegitimate police conduct, the courts never- 
theless permit it. The lack of deterrence value is also 
cited as grounds for passing over the exclusionary rule. 
For this reason, the Supreme Court refused to overturn 
the convictions of prisoners with Fourth Amendment 
grievances who had already received the full course of 
appeals in the state courts and sought federal relief 
under petitions of habeas corpus. The High Court didn't 
think that at such a late stage of the appeals process the 



63 - 



exclusionary rule would have any deterrent effect on 
the behavior of the cops involved six years earlier.^s 

Police often rely in "good faith" on a law that's later 
held to be unconstitutional,^^ or on a belief concerning 
the law that's later proven to be erroneous.'" When such 
a reliance results in the breach of a defendant's consti- 
tutional rights, the courts generally refuse to apply the 
exclusionary rule. What behavior, they ask, could they 
hope to modify by punishing the police for doing what 
they thought was their duty? Following up on this "good 
faith" nonsense, the Supreme Court delivered the coup 
de grace to the warrant requirement with its recent 
ruling that, even when the cops and the judge screw up 
and issue a bum warrant, they can still use the evidence 
they've acquired with it as long as nobody can prove 
that they deliberately cheated.'^ Cops and judges, who 
are presumed to be acting in "good faith" rather than 
from self-serving expediency, have but to assert that 
they placed their "objectively reasonable" reliance on 
the sufficiency of their probable cause. Maybe the "prob- 
able cause" will turn out to be zilch once somebody looks 
at it closely, but no matter - the warrant and its 
resultant evidence still stand. 

Even when evidence must be suppressed from use in 
the prosecutor's case-in-chief, it can still be slipped into 
the trial if the defendant approaches the subject from 
the witness stand, because the exclusionary rule doesn't 
apply to evidence used for impeachment purposes.'^ 

Criticism of the exclusionary rule has been voiced by 
the more truculent and punitory members of the legal 
community. Their main complaint charges that it sub- 
verts the ends of justice by preventing the whole truth 
from being told. The "whole truth" that they're talking 
about doesn't demand an accounting of all the factors 
which kindled a crime and made it necessary. Such 
considerations are deemed irrelevant, and in their minds 
there's no excuse for breaking the law anyway. It's that 
precious evidence that might be used to convict some- 



64 



body that their "whole truth" contemplates. It must be 
remembered that punishment is the lifeblood of the 
System; without it the whole framework would break 
down. It shouldn't be any surprise that sanctimonious 
egotists who have seized the role of running other 
people's lives would object to the loss of a good piece of 
incriminating evidence. 

The consequence of vital evidence suppression is that 
the guilty escape punishment; as Justice Cardozo has 
cynically commented, "the criminal is to go free because 
the constable has blundered."^^ In addition to the trauma 
that this works on authoritarian egos, there's the al- 
legation that it endangers society. The decent, law-abid- 
ing citizens are placed in peril by exposure to criminals 
(viz. people who might have been locked up but for the 
exclusionary rule). Folks who break drug laws are espec- 
ially likely to benefit from this rule, according to a recent 
study. Between the years 1976 and 1979, police search- 
and-seizure violations in California caused the prosecu- 
tors to drop 4.8% of their more than 4,000 felony cases; 
they had to drop 30% of their felony drug busts.'* 

In summary, it can be seen that the courts have drawn 
a balance between the individual's rights and govern- 
ment's interests, and the prevailing state of this balance 
at the time of trial determines whether or not they will 
allow the use of the exclusionary rule. On the one pan of 
the scales we have the so-called "societal interests," 
which claim that "everything rationally related to as- 
certaining the truth is presumptively admissible.'''^ j^e 
police and other partners in the System endeavor to ex- 
pand the stacking of this side of the scales, with the dis- 
cretionary standard of the Gestapo envisioned as the 
ideal. Even they, however, admit to limitation from such 
strong constitutional rights as privileged communi- 
cations and the refusal to testify against oneself." 
Balanced against "societal interests" is the constitutional 
right of the individual to be left alone. He's entitled to 
be free from police "invasion of his indefeasible right of 



- 65 



personal security, personal liberty and private property," 
as well as "any forcible and compulsory extortion of a 
man's own testimony or of his private papers to be used 
as evidence to convict him of crime or to forfeit his 
goods."56 

In a larger sense, however, the individual's interests are 
identical to those of society, rather than being at war 
with them. Admittedly, it's in a criminal's best interests 
if he can exploit the exclusionary rule to beat his case, 
but that's only a side effect of the personal rights issue. 
The heart of the issue is the citizens' trust in govern- 
ment, as Justice Brandeis has warned: "If the govern- 
ment becomes a lawbreal<er, it breeds contempt for the 
law; it invites every man to become a law unto himself; 
it invites anarchy."" This is why the idea of an "impera- 
tive of judicial integrity" was felt to be so important at 
one time; "Nothing can destroy a government more 
quickly than its failure to observe its own laws, or worse, 
its disregard of the charter of its own existence.'''^ 
Citizens perceive their government as being fair, honor- 
able, and worthy of support only when it treats them 
respectfully and acts in behalf of their interests as indi- 
viduals. Society is nothing more than the sum of those 
individuals, so the genuine societal interest is far more 
deeply concerned with personal rights than with govern- 
mental services such as law enforcement. Government 
telling us what's best for our society is like the spider 
giving navigational directions to the fly. 



REFERENCES 

1. Elkins V U.S., 364 US 206, 222, 80 SCt 1437, 1447 (1960) 

2. Madison, James, I Annals of Congress 439 (i 789) 

3. as. V weeks, 232 US 383, 34 SCt 341 (1914) 

4. Mapp V Ohio, 367 us 643, 81 SCt 1684 (1961) 

5. Wong Sun V U.S., 371 US 471, 485, 83 SCt 407, 416 (1963) 



66 - 



6. Brown V Illinois, 422 US 590, 95 set 2254 (1975) 

7. Miranda v Arizona, 384 US 436, 86 SCt 1602 (1966) 

8. MCCInnIS V U.S., 227 F2d 598 (1st Cir. 1955) 

9. Silverman VU.S., 365 US 505, 81 SCt 679 (1961) 

10. U.S. V wade, 388 US 21 8, 87 SCt 1926 (1967) 

11. Silverthorne Lumber Co. vU.S., 251 US 385, 392, 40 SCt 
182,183(1920) 

1 2. Wong Sun v U.S., 371 us at 488, 83 SCt at 41 7 

13. Rea VU.S, 350 us 214, 217, 76 SCt 292, 294 (1956) 

14. U.S. V Jam's, 428 us 433, 449-453, 96 SCt 3021, 3029-3032 
(1976) 

15. McDonald V U.S., 335 US 451, 453, 69 SCt 191, 192 (1948) 

16. U.S. vCalandra, 414 US 338, 357, 94 SCt 613, 624 (1974) 

17. Michigan v Tucker, 417 US 433, 450 n. 25, 94 SCt 2357, 
2367 n. 25(1974) 

18. stone V Powell, 428 US 467, 485, 96 SCt 3037, 3048 
(1976) 

19. Id, 428 US at 486, 96 SCt at 3048 

20. Mapp V Ohio, 367 US at 661-662, 81 SCt at 1695 

21. Alderman VUS., 394 US 165, 89 SCt 961 (1969) 

22. Id, 394 US at 179 n. 11, 89 SCt at 969-970 n. 11 

23. U.S. vBarletta, 500 FSupp 739 (D. Mass. 1980) 

24. Smith V EStelle 451 US 454, 468 n. 12, 101 SCt 1866, 
1876 n. 12 (1981) 

25. US V Ceccoilnl, 435 US 268, 98 SCt 1054 (1978) 

26. Wong Sun V U.S., 371 US at 491, 83 SCt at 419 

27. Nardone V U.S., 308 us 338, 341,60 SCt 266, 268 (1939) 

28. Nix V Williams, _ US _ , 104 SCt 2501, 2511 (1984) 

29. U.S. V Peltier, 422 US 531, 95 SCt 2313 (1975) 

30. US. V Williams, 622 F2(j 830 (5th Cir. 1980) 

31. U.S. VLeon, _ us _, 104 set 3405, 3423 (1984) 



67 



32. U.S. V Havens, 446 US 620, 100 SCt 1912 (1980) 

33. People VDefore, 242 N.Y. 13, 21, 150 NE 585, 587 (1926) 

34. National institute of Justice, The Effects of the 
Exclusionary Rule.- A Study in California 2 (l 982) 

35. Rios V U.S. & Elkins v U.S., Dissenting Opinions, 364 US 
233, 80 SCt 1453, 1454 (1960) 

36. Boyd V U.S., 116 US 616, 630, 6 SCt 524, 532 (1886) 

37. Olmstead V U.S., ill US 438, 485, 48 SCt 564, 575 (1928) 

38. Mapp y Ohio, 367 US at 659, 81 SCt at 1694 



- 68 - 



Part II 



THE FOURTH 



Chapter 6 



THE 

FOURTH 

AMENDMENT 




- 71 



"The right of the people to be secure in their 
persons, houses, papers and effects, against 
unreasonable searches and seizures, shali not be 
violated, and no Warrants shali issue, but upon 
probable cause, supported by Oath or affirm- 
ation, and particularly describing the place to 
be searched, and the persons or things to be 
seized." 

The united States Constitution, Amendment iv 

(1787) 



It's a principle as old as mankind that a small, well- 
armed gang can freely push its way around among less- 
organized masses of people by using the threat of vio- 
lence. The writers of the Constitution were fed up with 
the English version of police harassment, so they wrote 
the Fourth Amendment to mal<e sure that the same kind 
of cancer wouldn't creep into their own newly-formed 
government. Its guarantees "are not mere second-class 
rights but belong in the catalog of indispensible free- 
doms. Among deprivations of rights, none is so effective 
in cowing a population, crushing the spirit of the individ- 
ual and putting terror in every heart, uncontrolled 
search and seizure is one of the first and most effective 
weapons in the arsenal of every arbitrary government."^ 
It's an issue that was "so deeply felt by the Colonies as 
to be one of the potent causes of the Revolution."^ 

The gist of the Fourth is that people have a right to 
expect privacy from governmental intrusion. It's implicit 
in the amendment that this privacy is not absolute,- it's 
subject to be overcome whenever the common good de- 
mands it. Yet, who's entitled to make that decision? A 
warrant is a judge's authorization for the police to inter- 
rupt a citizen's privacy and take something (or someone), 
so the mention of warrants suggests that such a decision 



73 



should be made by a judge. The wording doesn't say that 
the police always Jnave to have a warrant, however. This 
point has left the door open to a wide variety of cir- 
cumstances under which a cop may use his own discre- 
tion to violate a citizen's privacy. Indeed, there seems to 
be a movement within the Supreme Court to drop the 
requirement for a warrant altogether.' It's also a signifi- 
cant point that enforcement of the Fourth Amendment 
through the exclusionary rule doesn't apply if the in- 
trusion is made by a private citizen* or foreign police.^ 
Such people are not entitled under our law to violate a 
person's privacy, but what they expose to the police by 
doing so can be used as evidence against him just as sure- 
ly as if they had wielded a warrant. The guarantees of 
the Fourth Amendment in this country apply not only to 
American citizens, but to aliens,^ corporations,^ and non- 
incorporated groups^ as well. 



CONSENT 

"Consent searches are permitted... because we 
permit our citizens to choose whether or not 
they wish to exercise their constitutional 
rights." 

Justice William J. Brennan dissenting in Schneck- 
loth vBustamonte, 412 US 218, 283, 93 SCt 2041, 
2076(1973) 

The easiest way for the police to break through a citi- 
zen's expectation of privacy is to get his consent. Once 
he invites them into his home, his car, or his pockets, he 
has given them carte blanche to use whatever they may 
find against him. Once he willingly goes along with them, 
he has voluntarily placed himself under arrest and 
relieved them of the burden of justifying it. He may not 
even realize the illegality of items in his possession, or 
things that he does in the privacy of his home. He might 



74 



well overlook the insignificant traces left from previous 
activities that he does know are illegal, in either case, 
however, the police won't be inhibited from seizing upon 
such evidence to convict him of a crime;^ a pistol that he 
Innocently keeps in his giove compartment, or some 
marijuana seeds in the pile of the carpet, might thus be- 
come the unexpected means for a rather harsh lesson In 
how the System works. 

Society Implants into its young minds the notion that 
they have nothing to fear from the exposure of their 
affairs to inquiring officials; "if you have nothing to hide, 
you have nothing to fear." Children grow up naively be- 
lieving that the details of their lives are harmless, 
insignificant trivia that the police would never be in- 
terested In. Why not expose them to inspection, as long 
as there's nothing flagrantly illegal? This philosophy is 
buttressed by the myth that the government Is good, 
that its agents are our friends, and that they're fair and 
just. The result of such conditioning is that average Joe 
Citizen is quick and generous in giving his consent to in- 
quisitive officials. He's even likely to feel guilty at the 
thought of refusal. He assumes that the police would 
never actually hold his harmless peccadillos against him. 
He's willing to believe that they'd probably overlook in- 
significant little incriminating details. He even believes 
that they might be dissuaded from a prosecution by ap- 
pealing to reason. Furthest from his mind is the thought 
that the police would ever stoop to planting or faking 
evidence in order to set him up. After all, "they're just 
good or boys like ourselves... and besides, they're repre- 
sentatives of our government!" 

In order for consent to be valid it must be given will- 
ingly,- mere submission to police authority is not the 
same as consent.^" There are numerous pressures that 
the police might bring to bear upon a person In order to 
coerce him into playing ball with them, and the circum- 
stances surrounding his grant of consent will show 
whether or not it was truly voluntary. Some of the 
factors that have been important in past cases include 



75 - 



the subject's youth.^^ low intelligence," lack of educa- 
tion," lack of advice of his constitutional rights,^* ex- 
ploitation of his religious beliefs," the use of "third 
degree" interrogation tactics," a lengthy period of 
detention," repeated and prolonged questioning," the 
use of physical punishment, such as depriving him of 
food or sleep," and overbearing police demands.^o The 
subject's own behavior can provide an indication of the 
voluntariness of his consent; what he says^^ or doesn't 
say,^^ his attitude, and his actions^^ are all inferential to 
what his true state of mind is. When somebody consents 
to a police intrusion, and later complains to the court 
that his consent was involuntary, it's the court's job to 
evaluate all these circumstances and decide the issue on 
an individual basis.^" Voluntariness of consent doesn't 
require a showing of the person's positive desire for the 
intrusion;" it's enough that he simply agrees to it. Nor is 
it relevant that he may have consented to something 
that's against his own interests.^e The Supreme Court 
looks upon that situtation as a sort of constitional right 
to commit suicide: "Unless an individual is incompetent, 
we have in the past rejected any paternalistic rule pro- 
tecting a defendent from his intelligent and voluntary 
decisions about his own criminal case."" The Court hasn't 
committed itself to insuring that those decisions are 
always intelligent, either. A person might conceivably be 
unaware of his right to refuse, yet still be considered to 
have made a "voluntary" consent-^s Even if a person does 
realize that he has a right to withhold consent, there's 
a tremendous potential for him to make a foolish de- 
cision (as most grants of consent are). People have no 
way of knowing from where and in what form harm to 
them might arise as a result of giving their consent to 
a search. The courts realize this, and seem to take a per- 
verse satisfaction in seeing people fall prey to their own 
poor judgement.25 a good many convictions are scored 
by duping gullible folks into giving their consent to 
searches that the police otherwise couldn't have 
made.2«/2W'^ 



76 - 



It would come as a great surprise to many people to 
learn that their consent might be acquired automatically 
in some circumstances, and be bypassed altogether in 
others. The first condition occurs when a person agrees 
to worl< under a government contract; he has automat- 
ically given his implied consent to warrantless audit and 
seizure under statutory authority." The second condi- 
tion can happen when a person shares his property and 
privacy rights with someone else. Whether it's his duffel 
bag," his bedroom,^* or a conversation" that he shares, 
he's giving up a measure of his expectation of privacy. 
The other person, having an equal right to consent to 
police intrusion, can thus open the doors to them for 
their searches, electronic bugging, or whatever. 



PROBABLE CAUSE 

"Why, sho' I got probable cause to locl< you up. 
Boy! Y'alls PROBABLE guilty CAUSE I sez you is." 

Sheriff Buford T. Justis, Bullhead County, 
Texazona 

If they can't get his consent, the police may legitimate- 
ly override a person's expectation of privacy by estab- 
lishing "probable cause" to believe that he's in some 
stage of committing a crime. This "probable cause" is 
simply a fact or two that the cop l<nows - something 
he's seen, or something he's heard from a reliable source 
- combined with what he knows from his training and 
experience."/'' if his facts would be sufficient in them- 
selves to warrant a reasonable person to believe that a 
crime has been committed, then he has probable cause." 
He doesn't have to be certain about the crime;" his 
reasonable inference, based on a substantial fact, is 
sufficient. "Fact" is the l<eyword here. Just believing that 
a person is guilty of a crime, without any facts to bacl< 



77 - 



it up, is not probabie cause - it's prejudice'^ The Anglo 
patrolman who defines "grand theft auto" as "six 
Chicanos in a new Cadillac" has failed to meet the 
criterion of probable cause. 



WARRANTS 



"The warrant requirement... is not an inconven- 
ience to be somehow 'weighed' against the 
claims of police efficiency. It is, or should be, an 
important worl<ing part of our machinery of 
government, operating as a matter of course 
to check the 'well-intentioned but mistakenly 
overzeaious, executive officers' who are a part 
of any system of law enforcement." 

Justice Potter Stewart, Coolidge V New Hamp- 
shire, 403 us 450, 481, 91 SCt 2022, 2046 (1971) 

Police officers who have plans to arrest somebody or 
search his property are supposed to get the go-ahead in 
the form of a warrant from a magistrate. They have to 
convince him that probable cause exists, and they do this 
by stating their facts on paper. This is called a "com- 
plaint" in the case of an arrest warrant and an "affidavit" 
in the case of a search warrant, and the officer must 
swear an oath to its truthfulness. Basically, the same 
standard for probable cause is used with either type of 
warrant.«° If the judge is convinced that there's justifica- 
tion to overcome the citizen's expectation of privacy, he 
issues the warrant. The facts that he relies on might con- 
sist of third-party "hearsay" evidence, such as the 
testimony of a victim or witness to a crime,^^ the word 
of a fellow policeman,«2 or a tip from an informant with 
inside information.*' This kind of evidence must have a 



78 



substantial basis to be acceptable, and the High Court 
says that when details supplied by a snitch can be 
corroborated by the police through their own indepen- 
dent observation, the evidence is substantial/^ Just 
mai<ing the claim that their snitch is "reliable" isn't good 
enough^s unless the police can support that claim by 
showing that he has been unusually dependable on pre- 
vious occasions.«« in any case, the judge reserves the 
right to use his own common-sense discretion in deter- 
mining under the "totality of circumstances" whether 
the facts are sufficient.*^ The probable cause that 
supports a warrant must still exist at the time the police 
serve it.^^ if they wait too long before making their 
search or arrest, there might not be any reason to be- 
lieve that the same facts that justified the warrant are 
still true; in that case, the warrant's no good. 

Great respect and adherence has been accorded the 
warrant concept all the way down through American 
history.«9 "Absent some grave emergency, the Fourth 
Amendment has interposed a magistrate between the 
citizen and police. This was done not to shield criminals 
nor to mal<e the home a safe haven for illegal activities. 
It was done so that an objective mind might weigh the 
need to invade that privacy in order to enforce the law. 
The right of privacy was deemed too precious to entrust 
to the discretion of those whose job is the detection of 
crime... And so the Constitution requires a magistrate to 
pass on the desires of the police before they violate the 
privacy of the home.''^" Evaluation of the facts by a neu- 
tral and detached magistrate provides an objective ele- 
ment of protection to our privacy that the cops 
wouldn't bother with.^^ it's no rubber stamp for the 
police, like the grand jury;" papers have to be filled out, 
and they become formal records that an arrestee can 
challenge in court. As we pointed out in the last chapter, 
however, the success of such a challenge will depend 
upon whether or not the defendant can show that the 
cops acted deliberately or with reckless disregard of the 
truth in preparing their warrant." 



79 



The factual basis for the complaint or affidavit can be 
attacked,'* although the courts tend to allow a generous 
leeway for technical imperfections, typographical errors, 
and such.55/"/" Bare-faced lies, of course, are not 
tolerated.58 Attacking the complaint might be effective 
in making the police release a man from jail (because the 
arrest warrant is therefore void), and at the same time 
ineffective as grounds for the suppression of incriminat- 
ing evidence acquired during his arrest.'s The warrant 
itself can be challenged on several fronts. The person 
who issued the warrant might not have been entitled to 
do so, as in the case of a Justice of the Peace who hap- 
pened to also be the prosecuton^o the guarantee of an 
impartial evaluation of probable cause would seem to be 
threatened under such an arrangement. The exact place 
or extent of the search might not be adequately des- 
cribed on the warrant, as in the case of a barn that is un- 
distinguished from any other barn in the county ,6^ or a 
whole building where the apartment to be searched isn't 
specified.62 The person or things that were supposed to 
be seized might not be adequately described on the war- 
rant,"/" the wording might be imprecise, have descrip- 
tive errors, or neglect to mention items altogether, if its 
terms are too inclusive it's said to be "overbroad," and 
that smacks of the infamous "general warrant" that the 
Redcoats used to employ when they wanted to rum- 
mage through the early colonists' homes. A warrant is 
supposed to be specific enough in describing, or "particu- 
larizing" the things to be seized that it doesn't leave any 
discretion to the cops at alL^s Flaws such as these can be 
a defendant's ticket out of jail, and they only become 
available if the warrant process is forced into operation. 
Depending upon which aspects of a warrant are faulty, 
a person might get partes or all*" of it quashed in court, 
and everything that came into police custody because of 
it might have to be thrown out as "fruits of the poison- 
ous tree" — a real windfall for somebody who was 
caught with the goods. 



80 



REFERENCES 

1. Brinegar v U.S., 338 US 160, 180, 69 set 1302, 1313 
(1949), J. Jackson dissenting 

2. U.S. VRabinowitZ, 339 US 56, 69, 70 set 430, 436 (1950), 
J. Franl<f urter dissenting 

3. US VROSS, 456 us 798, 102 SCt 1290 (1982) 

4. US V Jacobsen, 466 us _, 104 set 1652, 1656-1657 
(1984) 

5. Govt Of Canal zone v Sierra, 594 F2d 60, 72 (5th eir. 

1979) 

6. Abel V U.S., 362 us 217, 80 SCt 683 (1960) 

7. CM. Leasing Corp. VUS, 429 US 338, 353, 97 set 619, 629 
(1977) 

8. Mancusl V DeForte, 392 US 364, 369, 88 SCt 2120, 2124 
(1968) 

9. US vDornblut, 261 F2d 949 (2d Cir. 1958) 

10. Florida vRoyer, 460 US _, 103 set 1319, 1324 (1983) 

11. Haley V Ohio, 332 US 596, 68 SCt 302 (1948) 

12. Fikes V Alabama, 352 US 191, 77 set 231 (1957) 

13. Payne v Arkansas, 356 US 560, 78 set 844 (1958) 

14. Davis V North Carolina, 384 US 737, 86 SCt 1761 (1966) 

15. Brewer v Williams, 430 US 387, 97 SCt 1232 (1977) 

16. Miranda v Arizona 384 US 436, 86 SCt 1602 (1966) 

17. Chambers v Florida, 309 US 227. 60 SCt 472 (1940) 

18. Ashcraft v Tennessee 322 us 143, 64 set 921 (1944) 

19. Reck V Pate 367 us 433, 81 SCt 1541 (1961) 

20. US vBerryman, 706 F2d 1241, 1243 (1st Cir. 1983) 

21. US. V canales, 572 F2d 1182, 1184 (6th Cir. 1978) 

22. Florida vRoyer, 103 SCt at 1322 



81 - 



23. Schneckloth v Bustamonte, 412 us 218, 220, 93 set 

2041,2044(1973) 

24. Id., 412 US at 248-249, 93 SCt at 2059 

25. as. V Vickers, 387 F2d 703, 707 (4th Cir. 1967) 

26. U.S. V Mendenhall, 446 US 544, 559, 100 SCt 1870, 1880 
(1980) 

27. Michigan viviosiey, 423 US 106, 108-109, 96 SCt 321, 329 
(1975), J. White concurring 

28. sclineckioth v Bustamonte, 412 US at 234, 93 set at 

2051 

29. as. V Gooding, 695 F2d 78 (4th Cir. 1982) 

30. as V Forero-Rincon, 626 F2cl 218 (2cl Cir. 1980) 

31. as V Henry, 615 F2d 1223 (9th Cir. 1980) 

32. zap V U.S., 32B US 624, 66 SCt 1277 (1946) 

33. Frazier V Cupp, 394 US 731 , 740, 89 SCt 1 420, 1 425 (1 969) 

34. as. V MatiOCk, 415 US 164, 169-170, 94 SCt 988, 992-993 
(1974) 

35. as. V White, 401 US 745, 751-752, 91 SCt 1122, 1125- 
1126(1971) 

36. Texas V Brown, 460 US_, 103 SCt 1 535, 1 543(1 983) 

37. Cortez VU.S, 449 US 411, 418, 101 SCt 690, 695 (1981) 

38. Carroll V U.S., 267 US 132, 162, 45 SCt 280, 288 (1925) 

39. Aqullar v Texas, 378 US 108, 112-113, 84 SCt 1509, 151 2- 
1513(1964) 

40. GiOrdenellO V U.S., 357 us 480, 485-486, 78 SCt 1245, 
1250(1958) 

41. as VSWihart, 554 F2d 264, 269 (6th Cir. 1977) 

42. as V Ventresca 380 us 102, 111, 85 set 741, 747 (1965) 

43. Illinois V Gates, 462 US_, 103 SCt 2317, 2335-2336 (1983) 

44. /or., 103 SCt at 2334 

45. Splnelll V U.S., 393 US 410, 416, 89 SCt 584, 589 (1969) 

46. Illinois V Gates, 103 SCt at 2329 

- 82 ■ 



47. /C(,103SCtat2332 

48. Sgro V U.S., 287 US 206, 210, 53 SCt 138, 140 (1932) 

49. Wright, Federal Practice and Procedure, Criminal 2d, 
Section 666 

50. McDonald V U.S., 335 US 451, 455-456, 69 SCt 191, 193 
(1948) 

51. Johnson V U.S., 333 US 10, 13-14, 68 SCt 367, 369 (1948) 

52. U.S. V DioniSiO, 410 US 1, 24, 93 SCt 764, 777 (1973), J. 
Douglas dissenting 

53. U.S. VLeon,_US_. 104 SCt 3405, 3423 (1984) 

54. Franks V Delaware, 438 us 154, 155-156, 98 SCt 2674, 
2676(1978) 

55. US V ventresca, 380 US at 108, 85 SCt at 746 

56. Jaben V U.S., 381 us 214, 224-225, 85 SCt 1365, 1371 
(1965) 

57. Massachusetts v Sheppard, _us_. 104 set 3424 (1984) 

58. People V Garcia, ill. App. Ct, 1st Dist., 9/8/82 

59. us V Fernandez-Guzman, 577 F2d 1093, 1097 (7th Cir. 
1978) 

60. Coolldge v New Hampshire, 403 us 443, 450, 91 SCt 

2022, 2029 (1971) 

61. McGlnnIS VUS, 227 F2d 598, 601-602 (1st Cir. 1955) 

62. as. V Parmenter, 531 FSupp 975, 976-977 (D. Mass. 
1982) 

63. west V Cabell, 1 53 us 78, 14 SCt 752 (1894) 

64. Coolldge v New Hampshire, 403 us at 471, 91 set at 

2040-2041 

65. Marron VU.S, 275 US 192, 196, 48 SCt 74, 76 (1927) 

66. as. vRlggs, 690 F2d 298, 300-301 (1st Cir. 1982) 



- 83 



Chapter 7 

EXCEPTIONS 

TO THE WARRANT 

REQUIREMENT 




- 85 



EXIGENCIES IVITH CAUSE TO SUSPECT CRIME 



"The creation or recognition of an exception to 
the 'warrant-based-on-probable-cause' require- 
ment is generally premised on a tripartite 
weighing of public necessity, efficacy of the 
search and degree of the intrusion." 

Judge Carl Bue, collier v Miller, 414 FSupp 1 357 (S. 
D.Texas 1976) 



Many situations furnish the police with probable cause 
to make a search or arrest, but not enough time to get 
a warrant beforehand. Since most outlaws are unwilling 
to wait around for them to go after their warrant, the 
cops have acquired the authority to act upon their own 
judgment of probable cause In cases of emergency. The 
need to catch a fleeing suspect Is one such emergency; 
It's well-recognized that the police do not need a 
warrant to search when they're in hot pursuit of a crimi- 
nal suspect.^ Another emergency Is the need to prevent 
evidence from disappearing, with their inherent capabil- 
ity to travel out of a court's jurisdiction and thus escape 
a warrant, vehicles pose a risk in this regard. A combina- 
tion of probable cause and the likelihood of their being 
moved Is therefore recognized as justification for the 
police to search cars, boats, and aircraft without a war- 
rant.V' Situations where evidence might be destroyed, 
either by nature^ or by a quick-thlnking outlaw,^ are also 
contemplated by this exception. 

Such exigencies justify warrantless search and seizure 
when supported by probable cause, but what do the 
cops do when they think "something's going down" but 
have no probable cause to act upon? The element of exi- 
gency is still there, they suspect that somebody's about 



87 



to get away with something, but they don't have the 
legal justification to breach his Fourth Amendment pro- 
tections. Under the ground rules discussed thus far, 
they'd be limited to the options of (1) a search and sei- 
zure that's unsupported by probable cause (which would 
be thrown out of court), (2) asking the suspect for his 
consent to be searched (which might be refused), and (3) 
just letting the matter pass (which they aren't about to 
do). The Supreme Court created an answer to this dilem- 
ma in 1968 by defining another level of justification to 
intrude, together with its own limited level of intrusion.^ 

This new justification might be thought of as the bas- 
tard stepchild of probable cause; instead of being "prob- 
able" it's merely "reasonable," and instead of being 
"cause to believe" it's merely "reason to suspect." It's just 
a less substantial form of probable cause which gives a 
cop the right to pry. Like probable cause, it must be 
based on facts that can be put into words - it must be 
articulable. Unlike probable cause, the facts needn't be 
sufficient to warrant a reasonable person to believe that 
a crime has been committed. They can be observations 
of circumstances that would only arouse the suspicion of 
one who is specially trained in crime detection. This less- 
substantial level of justification to intrude will be hence- 
forth referred to as "reasonable articulable suspicion." 

The level of intrusion that goes along with it is a sim- 
ilarly limited form of search and seizure,- after all, if the 
standard of excuse to intrude is to be relaxed, the level 
of intrusion ought to be lessened proportionately. 
Instead of an arrest (based on probable cause) the officer 
conducts a brief "stop" or "detention" (based on reason- 
able articulable suspicion), instead of a "full field search" 
of the person, as would be done upon arrest, he merely 
conducts a "frisk" or patting down of the clothing to feel 
for weapons. The subject is not supposed to be moved 
from the place of the encounter, is not under any ob- 
ligation to answer the questions, and must be free to 
leave after a brief time if there's no probable cause to 
arrest him. it's an "intermediate intrusion." Originally, 



88 



the whole purpose of this limited form of intrusion was 
to give the policeman a mechanism for protecting him- 
self from someone carrying a concealed weapon. He 
could stop the person and inquire about the suspicious 
circumstances, and if he should become fearful he could 
frisl( the person and remove any weapons as a self- 
protective measure - the "stop and frisk" policy. Law 
enforcement, however, has predictably exploited this 
type of intrusion as a means of threshing out other 
evidence of crime, such as contraband,^ illegal aliens,^ and 
administrative motor vehicle violations.^° Police who 
proceed to search somebody under the auspices of a 
weapons frisk are not supposed to use the situation as 
a pretext to look for other things, such as dope,-^^ if they 
should happen to accidentally turn up something inter- 
esting, however... well, those are the breaks.' The useful- 
ness to the police of a limited intrusion is that it gives 
them an opportunity to start investigating something 
at the earliest indication of an irregularity. Once a cop 
gets his foot in the door, the facts that he digs up might 
become grounds to turn a brief detention based on 
reasonable articulable suspicion into an arrest based up- 
on probable cause. 



EXIGENCIES TO PROTECT UFE AND RENDER AID 



Exclusive of any considerations regarding whether or 
not a crime may have been committed, the police have 
a duty to protect the public safety and come to the aid 
of anyone who might be in physical danger. Their pre- 
sence at the scene of a llfe-and-death crisis, such as a 
fire," a shooting," a potential explosion," or a medical 
emergency," may lead them to cross somebody's Fourth 
Amendment privacy barrier. Such an exigency is a well- 
recognized exception to the warrant requirement. 



- 89 



SEARCH INCIDENT 
TO LAWFUL ARREST 

In case all this talk about reasonable suspicion and 
probable cause has created the impression that cops are 
reasonable people, this is a good time to correct that 
misconception. These are legal concepts which are used 
by the courts to decide the propriety of a search and 
seizure long after it's been done. The only interest the 
police have in such concepts is their use as guidelines for 
mal<ing the decision to arrest or not to arrest; to search 
immediately or wait for a warrant. They can memorize 
rigid policy, where there's a "bright line" to show them 
the limits of permissibility, but they're not thinl<ers. 
Their adequacy is in the realm of following orders, not in 
that of intelligent reasoning. One such bright line is the 
fact of a suspect's arrest. Police procedure dictates that 
certain things will happen upon a person's arrest, regard- 
less of the circumstances,- he'll be handcuffed, "read his 
rights," bool<ed in at the station house, etc. it's irrelevant 
whether or not he poses a threat sufficient to justify the 
handcuffs, it doesn't matter if he's an attorney and al- 
ready knows his rights. The constable's only concern is 
that a lawful arrest be made and the proper procedure 
observed. The courts have recognized this talisman-like 
quality of lawful arrest as being one more exception to 
the requirement for a search warrant.^^ 

There are three basic issues surrounding the "search 
incident to lawful arrest:" (1) the scope of the search 
(how far they can go), (2) its extent (how deep they can 
dig), and (3) the timing (when they can do it). The scope 
has been defined by the Supreme Court to include the 
person of the arrestee and the area under his immediate 
physical control (the "grabbable area").^^ This logically 



90 - 



includes any parts of a room or vehicle that a defendant 
might be physically capable of reaching at the Instant of 
arrest. The rationale Is that a person might go for a gun 
or destroy evidence, and the courts recognize that a 
lawful arrest is In itself justification to take measures to 
see that neither of those things will happen, unfortu- 
nately, the question of exactly what "grabbable area" 
consists of remains open to courtroom Interpretation. 
The Supreme Court attempted to clarify It In the case of 
a car by saying that the passenger compartment, but 
not the trunk, is grabbable area;^^ t^is clears up any 
doubts about the trunk being off-limits to search 
incident to arrest, but at the same time it raises the new 
possibility that the cops may be entitled to search the 
passenger compartment of a person's nearby car simply 
because of his arrest, regardless of his separation from 
It in time or space.^^ Moreover, since this mechanistic ap- 
proach defines grabbable area on a spatial rather than a 
functional basis, it allows area searches even when the 
arrestee Is hog-tled and physically incapable of actually 
doing any grabbing.^V^" 

The extent to which such searches may be conducted 
Includes full field search of the individual's person^^ and 
the opening of any closed containers within the grab- 
bable area (I.e. briefcases, packages, desk drawers, a glove 
compartment, eto.^s jhe High court hasn't specifically 
stated that locked containers may be forced open, but 
at least two of its Justices understand the holding to 
mean as much.^V" The search incident to lawful arrest 
is completely unlimited as to Its objective; any type of 
evidence that they can turn up is fair game." 

The issue regarding the timing of these searches is em- 
bodied In the phrase "incident to," which suggests that 
the search should occur at approximately the same time 
as the arrest, if there's probable cause to arrest some- 
one, and the police go ahead and do a search incident to 
lawful arrest just before making the formal arrest, the 
search Is valid.^* if they don't have cause to arrest, how- 
ever, any search they do cannot be considered "incident 



91 - 



to lawful arrest;" the evidence that turns up can't be 
used to justify the arrest, and both search and arrest are 
invalidated.^^ Because the justification for a search in- 
cident to lawful arrest ceases after the arrestee is safely 
in custody, these searches are generally invalid when 
done at a later time or piace.^V" unless intentionally de- 
ferred for some overriding reason.^s one thing there isn't 
any disagreement about is that the arrest must be valid 
- that's why the word "lawful" is always included in the 
phrase, if the arrest is without sufficient cause.^^ or if the 
warrant's either invalld'° or invalidly executed,'^ the 
arrest and its incident search both fail. Police detention 
that's less than a formal arrest (such as the protective 
confinement of drunl<s in some states) might fail to 
justify such a search, also." 



ADMINISTRATIVE SEARCHES 

A further class of exceptions to the warrant require- 
ment is that of administrative searches. Any type of 
blanket search that's conducted in the interests of an 
institution or society in general can be thought of in this 
category. The government has its fingers into every- 
one's business, but those industries which affect the 
public safety are especially vulnerable to its regulation. 
Congress has specifically authorized warrantless 
searches in some types of business as part of a regu- 
latory scheme - gun dealerships and mining operations 
are two of them." The average man on the street, 
however, is more lil<ely to be familiar with the warrant- 
less personal searches that we have to submit to in order 
to get past various security checl<points. Some, such as 
those at the entrances of federal buildings and airport 
boarding gates, merely require the subjects to pass 
through a metal detector and show the contents of 
their briefcases, etc'V" The feds have conducted plant 
quarantine programs whereby travelers' effects were 



92 - 



submitted to the same type of search that Customs 
officials do.'B people seeking entrance to military re- 
stricted areas may have to submit to warrantless vehicle 
searches," and acceptance of a prison staff position 
might entail a standing consent to undergo surprise 
"strip searches.'''^ He who receives the hospitality of the 
local jail is likely to be treated to the works: a complete 
strip search (which includes a peek into whatever orifices 
the jailer may fancy) and a routine "inventory search" 
(which produces a written accounting of every item 
brought in, from his dentures to the contents of his 
automobile).'^ The widest range of discretion to search is 
held by the feds who control the frontier. Their author- 
ity to perform warrantless searches is backed up by stat- 
ute,^" and extends from 12 miles offshores*^ to 100 miles 
inside the border, plus "functional border equivalents" 
such as airports.^ The intensity of their searches can 
range from brief questioning to the limits of the imagin- 
ation. 

All these exceptions to the warrant requirement are 
the offspring of that capricious slut, Lady Luck. There 
seems to be no end to the number of possible hands that 
she's capable of dealing, under practically identical 
circumstances, two people committing the same crime 
might fall victim to warrantless search and seizure under 
totally different justifications, and a third might not be 
searchable at all. Nobody can foresee every little detail 
in life,- an outlaw can't anticipate every hitch, and the 
cops can't always pick up on his mistakes. Police know 
that there's more than one way to skin a cat, however, 
and they look for every excuse they can find to justify 
an intrusion. These warrant exceptions often overlap in 
a given situation, allowing more than one basis of justi- 
fication to violate a person's Fourth Amendment rights. 

Consider a hypothetical situation. A police patrol car 
receives an ali points bulletin to be on the lookout for a 
distinctive automobile carrying two men who have just 
committed an armed robbery. Being in the vicinity of 
the crime, the cops decide to cruise around in search of 



- 93 



the car. As they round a corner they see a vehicle of the 
correct description pull up along the curb, and two men 
carrying shotguns get out and enter a house. There are 
no license plates on the car. First of all, the cops have 
probable cause to conduct an immediate warrantless 
search of the entire car under the automobile except- 
ion,^' since the car and its occupants answer the descript- 
ion and locality reported in the A.P.B. Additionally, they 
have probable cause to arrest the driver for operating a 
vehicle without license plates, and thereby conduct a 
warrantless search of the passenger compartment in- 
cident to lawful arrest.^8 since they were actively 
searching for the getaway car, and have probable cause 
to believe that the men they saw were the robbers, 
they're justified in entering the house without a search 
warrant under the hot pursuit exception.^ Moreover, the 
circumstance of two armed desperadoes running loose 
among the taxpayers justifies the warrantless entry as 
an exigency to protect life and render aid." In the event 
that they make an arrest and take the suspects and their 
car into custody, they would be justified in making a 
complete inventory search of the car and the men's 
personal effects.*^ At the very least, they have reason- 
able articulable suspicion enough to warrant inquiry and 
brief detention of the men while they try to arrive at an 
explanation.^ 

Exceptions to the warrant requirement provide police 
with an excuse to Invade a person's privacy, and the 
circumstances of an occasion often allow it for more 
than one reason. Let the area within the boundaries of 
the diagram (see page 95) represent all possible incrimi- 
nating seizures, and let each of the figures represent a 
portion of them that can be had under a different 
exception to the warrant requirement. Notice how the 
exceptions overlap one another, with a very small pro- 
portion of the total area being covered by several 
exceptions simultaneously. The dashed area represents 
those seizures which cannot be made except by warrant. 
The figures represent the automobile exception (car). 



94 



the hot pursuit exception (gun), the exigency to protect 
life (first aid cross), incidence to iawful arrest (badge), 
administrative searches (sheet of paper), reasonable 
articulable suspicion (question mark), and consent (circle). 




Figure 1 



A supplement to these warrant exceptions is the "plain 
view doctrine." Any time a cop has a legitimate reason 
for being where he is, and inadvertently happens to see 
something that he has cause to believe is evidence of a 
crime, he may seize it immediately without a warrant.^V 
« Out in public, where there is no privacy, a policeman 
doesn't need any special justification to seize a suspicious 
object. Anyone stupid enough to flaunt his business in 
the Man's face deserves to be busted, once that cop 
enters private turf, where an individual has a recognized 
expectation of privacy, it's a different story.« The 
Fourth Amendment demands reasonableness in any 



95 



seizure, and unless there's a legitimate reason for a cop 
to be trespassing, no seizure will be considered reason- 
able. Seeing something and having probable cause to 
seize it isn't by itself sufficient excuse for him to make 
the seizure.^^ He must also have a prior justification for 
being there — either consent, a warrant, or one of the 
recognized exceptions to the warrant requirement, such 
as an emergency,^^ an arrest,*^ or an administrative 
search.*^ Assuming that the officer is legitimately on the 
scene, a second condition of the plain view doctrine dic- 
tates that he discovered the evidence inadvertently .^^ it 
would be a simple matter for a cop to arrange an 
"exigency" to occur so that he can gain access to 
something he wants to seize - deliberate cheating of 
the warrant requirement - so the law holds that evi- 
dence which isn't discovered inadvertently isn't valid 
under this doctrine. A third condition for plain view 
seizure is that it should be immediately apparent that 
whatever is found is indeed associated with some 
crime.** in the case of a brick of marijuana, there'd be 
little question that it constitutes evidence of crime. 
When personal papers, firearms, and other possibly in- 
nocent items are concerned, however, the spectre of a 
pretext looms in the background. It's therefore consid- 
ered reasonable to require police to demonstrate at 
least a common-sense degree of probable cause to be- 
lieve that what they saw and seized in plain view was in 
fact evidence of a crime.*^ Although there are limits on 
the scope of these warrantless searches, it's been 
allowed that when an officer sees evidence in plain view 
beyond the area he's authorized to be in, he may still 
validly seize it as long as his search has been properly 
limited. The idea is to keep the police from turning a valid 
warrantless search into a general exploratory rummag- 
ing from one item to another until something incrimin- 
ating turns up.** 

What constitutes "plain view" is an interesting point 
to consider. Nobody would argue with the contention 
that marijuana seeds which are on a table and visible 



- 96 



from the doorway are in plain view/^ in their semi- 
religious zeal, however, law enforcement officials have 
taken the concept of plain view to ludicrous heights. 
Texas cops recently did so quite literally as they em- 
ployed helicopters and a 600 mm telescope in desperate 
attempts to get a peek through the 5-inch gap of a 
greenhouse vent. They felt confident that there had to 
be a cannabis crop inside, and spent a month of such she- 
nanigans before finally concluding that they could in- 
deed see the weed growing right there "in plain view." 
That one was laughed out of court^o but it's well ac- 
cepted that anything an inquisitive passerby might 
conceivably be able to see is in plain view for police 
seizure purposes.^^ The concept isn't restricted to the 
sense of sight, either,- it can be applied to "plain smell," 
such as the odor of marijuana,^^ "plain feel," such as a 
weapon that's palpable through the side of a cloth 
knapsack,52 and "plain hearing," such as things told in 
misplaced confidence to a police informant." In short, 
anything that a chump is careless enough to put out "on 
front street" is fair material for the police to use as evi- 
dence against him. 



REFERENCES 

1. warden 1/ Hayden, 387 US 294, 298-299, 87 set 1642, 
1645-1645(1967) 

2. Carroll 1/ U.S., 267 US 1 32, 1 53-1 54, 45 SCt 280, 285 (1 925) 

3. U.S. V Montgomery, 554 F2d 754, 758 (5th CIr. 1977) 

4. schmerber v California, 384 US 759, 770-771, 86 SCt 
1826,1835-1836(1966) 

5. Ker V California, 374 US 23, 40-41, 83 SCt 1623, 1633- 
1634(1963) 

6. Terry 1/ Ohio, 392 US 1, 88 SCt I868 (1968) 

7. People V Lewis, Colo. Sup. Ct, 2/28/83 



97 



8. U.S. V Mendenhall, 446 us 544, 559, 100 set 1870, 1880 
(1980) 

9. U.S. V Brignoni-Ponce, 422 US 873, 95 set 2574 (1975) 

10. Delaware vProuse, 440 us 648, 663, 99 set 1391, 1401 

(1979) 

11. Sibron v New York, 392 US 40, 64, 88 set 1942, 1950 
(1978) 

12. Michigan v Tyler, 436 US 499, 509, 98 set 1942, 1950 
(1978) 

13. Mincey v Arizona, 437 US 385, 392, 98 set 2408, 2413 
(1978) 

14. People V Clements, eolo. Sup. et, 3/28/83 

15. US vDunavan, 485 F2d 201, 204-205 (6th eir. 1973) 

16. Michigan vDeFillippo, 443 US 31, 35, 99 set 2627, 2631 
(1979) 

17. Chimel v California, 395 US 752, 763-764, 89 set 2034, 

2040-2041 (1969) 

18. New York V Belton, 453 us 455, 460, 101 set 2860, 2864 
(1981) 

19. Id, 453 us at 468-470, 101 Set at 2868-2869, J. Brennan 
(dissenting 

20. People V Levan, N.Y. Sup. et, App. Div., 1st Dept, 2/10/ 
83 

21. as. V Robinson, 414 US 218, 235, 94 Set 467, 477 (1973) 

22. New York V Belton, 453 US at 471-472, 101 set at 2870, 
J. White (jissenting 

23. as. V Robinson, 414 US at 234, 94 set at 476 

24. Rawlings v Kentucky, 488 US 98, ill, 100 set 2556, 2564 
(1980) 

25. as. VDiRe, 332 US 581, 595, 68 Set 222, 229 (1948) 

26. Preston V U.S., 376 US 364, 367-368, 84 Set 881, 883 
(1964) 

27. Michigan v Tyler, 436 US at 5il, 98 set at 1951 



- 98 



28. U.S. V Edwards, 415 US 800, 803-805, 94 SCt 1234, 1237- 
1238(1974) 

29. Jones V U.S., 357 US 493, 78 SCt 1253 (1958) 

30. CiOrdenellO V U.S., 357 US 480, 485-486, 78 SCt 1245, 
1250(1958) 

31. US vMacri, 185 FSupp 144, 150 (D. Conn. 1960) 

32. US V Gallop, 606 F2d 836 (9th Cir. 1979) 

33. Donovan v Dewey, 452 US 594, 600-606, 101 SCt 2534, 
2538-2539,2542(1981) 

34. U.S. V Henry, 615 F2d 1223 (9th Cir. 1980) 

35. Downing vKunzig, 454 F2d 1230, 1233 (6th Cir. 1972) 

36. U.S. V Schafer, 461 F2d 856 (9th Cir. 1972) 

37. US V Miles, 480 F2d 1217 (9th Cir. 1973) 

38. Cettleman v Werner, 377 FSupp 445, 452 (W.D. Pa. 1974) 

39. South Dakota V Opperman, 428 us 364, 375-376, 96 SCt 
3092,3100(1976) 

40. Title 8 u.S.C. Section 1357; Title 19 U.S.C. Sections 482, 

1581,1582,1701 

41. U.S. V Viilamonte-Marquez, 462 US _, 103 SCt 2573, 
2578(1983) 

42. as. V Brignoni-Ponce, 422 US at 882-884, 95 SCt at 
2581-2582 

43. US VROSS, 456 US 798, 102 SCt 1290 (1982) 

44. Coolidge v New Hampshire, 403 US 443, 466-468, 91 SCt 
2022,2038-2039(1971) 

45. Texas V Brown 460 US _, 103 SCt 1535, 1540-1541 
(1983) 

46. Washington v Chrisman, 455 US i, 9, 102 SCt 812, 818 
(1982) 

47. Harris V U.S., 390 US 234, 88 SCt 992 (1968) 

48. Coolidge v New Hampshire, 403 US at 469-470, 91 SCt 
at 2040 

- 99 - 



49. Texas V Brown, 460 US _, 103 SCt at 1 542 

50. Wheeler v State, Texas court of Criminal Appeals, 9/ 
29/83 

51. U.S. V Norman, 701 F2d 295, 297 (4th Cir. 1983) 

52. state V Ortiz, Hawaii Intermediate Ct. App., 4/18/83 

53. HOffa V U.S., 385 US 293, 302-303, 87 SCt 408, 413-414 
(1966) 



100 - 



Chapter 8 

SEARCH AND SEIZURE 
OF THE PERSON 




- 101 - 



"The overriding function of tfie Fourtfi Amend- 
ment is to protect personal privacy and dignity 
against unwarranted intrusion by the State." 

Justice William J. Brennan, Schmerber v Californ- 
ia, 384 US 757, 767, 86 SCt 1826, 1834 (1966) 



Now that we have a grasp on the general meaning of 
the Fourth Amendment, we can discuss its specific im- 
pact on the individual. Certainly the most vital of our 
protected interests is that of the person,- the ownership 
of home and property can be a fleeting thing, but the 
integrity of our bodies remains always with us. It's the 
last thing we have to lose when we've lost everything 
else, and it's inseparably tied to our deepest feelings of 
self-worth and will. 

The most meaningful way of looking at search and 
seizure of the person is to consider it in terms of levels 
of intrusiveness. The emphasis of this book is on showing 
precisely what the police in America are authorized to do 
and what their legal limits are. For this reason, the pre- 
sent chapter will progress from the discussion of their 
most minimal impositions through their more oppressive 
ones. A "minimal" intrusion is not necessarily an inconse- 
quential one,- any encounter that a person has with the 
police is potentially harmful. A piece of evidence is just 
as damning, whether it's picked up during a minor in- 
trusion or a major one. 

It should be remembered that, while each level of 
police intrusion has its limits, the facts and circum- 
stances that develop can push it beyond them into the 



- 103 - 



next higher level. A little beliigerence here, and a bit of 
incriminating evidence there, and what began as a casual 
chat can wind up with somebody in handcuffs. 



W/ITH LESS THAN REASONABLE 
ARTICULABLE SUSPICION 

Though it may disagree with some folks' preference re- 
garding formal social conduct, there exists a "common 
law right of inquiry" which permits one to approach a 
total stranger and ask a question. This right applies no 
less to a policeman than to the next person, and likewise 
invests him with no more authority than anyone else.^ it 
simply means that there's nothing wrong with one 
human being speaking to another. As a natural courtesy 
during such an encounter, it wouldn't be unusual for the 
inquirer to introduce himself; depending upon the cir- 
cumstances, he might even Identify himself as to his 
background or profession, it happens all the time when 
a person offering his help to a stranger qualifies himself 
with a disclosure that he's bilingual, a mechanic, a para- 
medic, or whatever the situation calls for. 

It's no different when a policeman approaches a citizen 
out of idle curiosity. He's entitled to identify himself as 
an officer,^ display his credentials,' or show off his Dick 
Tracy two-way wrist radio, if that's what turns him on; 
but none of this constitutes an imposition of authority. 
Cops are pathetically addicted to the outward symbols 
of their job, such as their credentials, uniforms, equip- 
ment, etc. They love to show them off for anybody who 
will look. They're fiercely proud of their status as law en- 
forcement officers, since more often than not it consti- 
tutes the nearest facsimile to a genuine accomplishment 
that they've ever had. This eagerness to impress people 
with their title or credentials should no more suggest an 
exercise of authority than a self-introduction by any 
other citizen. A tramp's begging or a street corner hawk- 



104 



er's solicitation demands no response at ail,- a cop's idle 
prattle carries the same force of authority, and merits 
the same level of respect. They may not like being ig- 
nored, but unless they can put their suspicion into words 
and confront you with it they have no authority to 
waste your time. 

Except by consent, the only personal search that the 
police can generally do without at least reasonable sus- 
picion is a border search. As was pointed out in the last 
chapter, the feds can do warrantless searches of anyone 
and anything coming into the country, whether by land, 
by air, or by sea. A person's decision to enter the United 
States carries the implicit understanding that he may be 
subjected to as thorough a personal search as the 
authorities may wish, and he's committed to it as soon 
as he attempts entry. A special situation exists in the 
case of people who are under conviction for a crime,- 
their constitutional rights have been diminished by the 
court as a part of conviction, and even if they're released 
on probation they can expect personal searches at the 
whim of the officials.^ 

Security searches, such as one encounters at airports, 
federal buildings, etc., often involve no more of an 
intrusion than passing through a metai detector. They 
are best regarded as consensual searches, since the 
person has the option to turn around and leave if he 
doesn't want to submit to it. 

One form of personal intrusion that the courts haven't 
universally agreed about yet is the dog sniff. Canines 
which are specially trained to detect drugs can easily 
point out someone who's "carrying" by sniffing him over. 
This sort of "search," when applied indiscriminately as a 
screening tactic, has been upheld by courts in some 
places^ and forbidden in others.^. Those cases where it 
has been upheld were justified within the narrow con- 
text of drug screening in public schools. There have been 
attempts to sanction it by claiming that it Isn't really a 
search at all, so it doesn't violate the Fourth Amendment 



- 105 



search and seizure protections.^ it nevertlieless remains 
a significant intrusion, and as one court stated, "Intent- 
ional close proximity sniffing of the person is offensive 
whether the sniffer be canine or human."« 

A person doesn't become subject to a search just be- 
cause he happens to be in the right place at the right 
time, or just because he happens to Iceep company with 
people who are under suspicion. The police would love to 
be able to shake everyone down whenever they raid a 
place, but unless they have an articulable reason to sus- 
pect each person in particular, they don't have authority 
to search him in any way.' This holds true whether the 
encounter occurs in a private residence,^ a public estab- 
lishment,' or an automobile.^ If the cops can't point to a 
specific reason to fear him, such as belligerent or suspic- 
ious behavior, they aren't authorized to frisk for wea- 
pons. If they can't specify probable cause for believing 
that a given person has incriminating evidence on him, 
they aren't authorized to search him for it. They aren't 
even authorized to detain him on the scene if he isn't an 
official occupant of the premises.^ A casual visitor who's 
behaving himself, and doesn't present the police with at 
least reasonable articulable suspicion, is therefore 
officially immune from any form of search or detention. 



WITH REASONABLE 
ARTICULABLE SUSPICION 

once a policeman has more than just a hunch that 
something illegal is afoot - when he has some objective 
reason to suspect a particular person of being dangerous 
or committing a crime — then he becomes justified to 
exercise authority. This minimum standard of justifi- 
cation is known as "reasonable articulable suspicion."^° On 
the basis of it the police may stop a person, question him, 
and detain him for a brief period of time while they at- 
tempt to determine whether or not he's guilty of some- 



106 



thing, if the circumstances of the encounter or the 
demeanor of the suspect suggest the lil<eiihood of dan- 
ger, they're also justified In frisldng him for weapons. 
This involves a patting down of the outer garments to 
feel for anything that might be a weapon, then reaching 
in for the purpose of removing it. It doesn't give them 
an excuse to rummage through pocl<ets for other 
things,^^ or to remove something that doesn't feel like a 
weapon.8/^2 This basic level of Intrusion Is generally 
known as a "Terry stop," referring to the name of the 
historic Supreme Court case which established it. It's 
characterized as being an "Intermediate Intrusion"^' 
because there are limits on the extent to which the cops 
can go; they're to use the least intrusive means available 
to dispel their suspicion within a short time perlod.^^ The 
presumption Is that, on such flimsy grounds as reason- 
able articulable suspicion, the officer must still consider 
his suspect to be Innocent of any wrongdoing and treat 
him accordingly. 

The brevity of this encounter has been suggested by 

the American Law Institute (A.Ll.) to be of less than 20 

minutes,^5 but there's no firm time limit set by law. It 

appears that the length of time required for police to 

run a check for outstanding warrants is accepted as 
reasonable.16 

During this limited detention. It's considered Improper 
for the police to move a suspect away from the scene 
of the encounter so as to Isolate him." it's not an arrest, 
and they're not supposed to make a person feel like he's 
under arrest. It might be okay to ask him to step inside 
the building to get out of the weather.^s but it would be 
improper for the police to take him to an interrogation 
room unless he Indicated a voluntary willingness to go 
there.i9 if the suspect happens to be In a vehicle, the 
police may order him either to stay Inside^" or to get 

0Ut.2i 

A wide range of circumstances can provide the reason- 
able articulable suspicion to warrant an Intermediate 



107 - 



intrusion, but in all cases there should be an element of 
particularity for the individuals concerned. Stopping 
people because they happen to be strangers to the 
area,22 or by selection at random,^' fails to meet the par- 
ticularity requirement. General area-sweep tactics, 
where everybody encountered within a given area is 
stopped and searched, are also improper.^* Though just 
being in a particular place Is of Itself Insufficient grounds 
to stop somebody, additional circumstances might 
throw a different light on it. Thus, when a person who 
was already suspect from prior Investigation shows up 
at the scene of an anticipated crime, the combination of 
circumstances does constitute reasonable articulable 
suspicion, even though he hasn't done anything sus- 
picious or illegal yet." 

The officer's fear of danger from a suspect is the orig- 
inal and still predominant Justification for a stop-and- 
frisk. Cops insist on always having the upper hand in any 
situation, and the courts agree that this is reasonable. 
Therefore, the slightest hint of danger from any source 
gives a cop the right to protect himself by frisking his 
suspect for weapons. An isolated or treacherous place, a 
late hour of night,^^ an exigent situation that's just de- 
veloped," or knowledge of a suspect's assaultive reputa- 
tlon^s might all be reasonable grounds for the Intrusion. 
An anonymous tip claiming that a given person is carry- 
ing a weapon is also adequate grounds," although the 
pretextual possibilities to that sort of excuse should be 
obvious. 

various law enforcement agencies have attempted to 
add an element of science to their specialties by creating 
lists of abstract characteristics that describe the type of 
offender they're interested In. They cull these descrip- 
tions from numerous prior cases and consolidate them 
into "profiles" which purportedly have statistical 
authority. The Implication is that a person in the general 
population who matches the characteristics of such a 
profile should have a statistically greater likelihood of 
being a criminal than those who do not. While this may 



108 



have an element of truth, the important point to realize 
is that profiles contain many descriptions that would be 
just as likely to characterize an innocent person as a 
guilty one. Subjecting someone to a Terry stop on the 
sole basis of his conformity to an abstract profile has 
been held valid in some cases^ and invalid in others.^"/^^ 
validity seems to be based on both the degree of sus- 
piciousness of the particular profile characteristics and 
the presence of consent. This subject will become clearer 
in Chapter 16, where a detailed discussion is devoted to 
the significance and use of a police profile. 

With a warrant the police can detain a person on 
reasonable articulable suspicion in order to accomplish 
part of an Investigation, such as fingerprinting," photo- 
graphy," voice analysis,'" or an identification lineup." 
Detentions of this sort must be conducted in such a way 
as to minimize the level of intrusion on a person's pri- 
vacy and freedom: the subject should be given advance 
notice of the detention, and allowed an opportunity to 
arrange for a convenient time when he can have his 
attorney present. Such investigations must be capable 
of producing reliable evidence, and be free of abuse, co- 
ercion, or intimidation to the subject." Even when the 
focus of the investigation is on one's property rather 
than his person, his detention might be valid. Such is the 
case when someone is detained on the scene while his 
home is being searched pursuant to a warrant." other 
types of property, such as luggage, do not carry such a 
liability; although the police may temporarily hold onto 
luggage during a Terry investigation, they have no 
authority to detain its owner along with it."/" of 
course, many people would feel themselves to be effect- 
ively detained once their luggage, driver's license, and 
travel ticket have been held up; and the longer they're 
withheld, the closer it comes to constituting a personal 
seizure."/'"'/*^'^ Only the ticket and ID are considered by 
the courts to bear upon a person's freedom to leave, 
since they would presumably be necessary for his de- 
parture, if a person voluntarily submits these Items 



- 109 



during a Terry investigation, it doesn't constitute a 
personal seizure until such time as they are clearly being 
.withheld as a means of detaining the suspect.«° 

The extent of a search based on reasonable suspicion 
is limited to the type of weapons frisk described above, 
under the circumstances of a Terry stop, however, it's 
common for the cops to finagle enough consent from 
people to accomplish a much more extensive search; if 
anything incriminating should then happen to turn up, 
the level of justification immediately rises to probable 
cause, and a full search incident to lawful arrest ensues. 
One type of personal search that falls into the basic 
/"err/ category is the dog sniff applied to a person.« With 
reasonable articulable suspicion that a person may be 
carrying drugs, police may subject him to a confirmatory 
sniff by trained dogs and thereby acquire probable cause 
for an arrest and a full search.« 

Part of the Terry search is directed toward gaining 
information, and it's appropriate to point out that, while 
a person may be under a certain degree of physical con- 
straint, he's under no compulsion to answer questions.*"" 
It's true that the whole idea behind a Terry stop is to 
give the policeman an opportunity to maintain the 
status quo while gathering more information;^ how- 
ever, there's no law that says a suspect must provide the 
information. It's been pompously suggested that citizens 
have a "duty" to cooperate and respond to such ques- 
tioning,''^ but that can be dismissed as mere propaganda. 

One piece of information that the cops are lil<ely to 
insist on is the subject's identity. Some state and local 
governments have gone so far as to enact statutes re- 
quiring a citizen to identify and explain himself when ^ 
requested to do so by the police.*? They've even tried to 
legislate the compulsory showing of "Gredible and re-,, 
liable identification" by pedestrians.** Such laws are^ 
unconstitutional and tend to be overturned eventually I 
in the Supreme Court,=f/** but in the meantime triey 
provide the cops with an excuse to badger and oppress 



110 



V 



folks who stray into their jurisdictions. As was pointed 
out in Chapter 5, incriminating evidence is not suppress- 
ible under the exclusionary rule when it's rooted Quit> 
during a "good faith" adherence to a law thaf s late| 
proved unconstitutionar in other words, a person can- 
not rely upon constitutional protections when con- 
fronted by a bad law that hasn't yet been overruled. 
Supplemental to the identification laws are the ones 
that make it a crime to give the cops false identifica- 
tion.'is they justify themselves with the claim that it's an 
"obstruction of justice" to deceive the police. 

Special identification laws aside, the police are legiti- 
mately entitled to detain a person against his will on the 
basis of reasonable articulable suspicion while they try to 
gather more information. However, the investigation 
must "be temporary and last no longer than is necessary 
to effectuate the purpose of the stop."^^ if the subject 
refuses to help them, his brief detention is the only 
threat they can pose against him.« After a while he must 
be allowed to leave, whether they're satisfied or not." 

The forcef ulness of such a detention depends upon the 
circumstances of the moment, it's usually imposed by 
virtue of a simple request from a policeman, and no 
physical constraint is involved as long as the suspect 
complies with the request. Whether the citizen is walk- 
ing,io driving," or navigating,*^ the cops are authorized 
to stop him once they have reasonable articulable 
suspicion. They're not supposed to use physical force, the 
displaying of weapons, a show of numbers, a threatening 
tone of voice, or any other coercive method unless it be- 
comes absolutely necessary .' Even minor intrusions must 
be minimized, lest several of them should result in a cum- 
ulative effect that raises the level of seizure impermis- 
sibly high.1* Nevertheless, if a suspect refuses to stop,5o or 
if the cops get scared,^^ they can escalate the degree of 
force as far as necessary, justified by the fear for per- 
sonal or public safety. They can apply handcuffs," draw 
down with their guns," or do anything else that's 
necessary to maintain the status quo. 



- 111 



WITH PROBABLE CAUSE 

The third and highest tier of police intrusiveness oc- 
curs at the point where there's probable cause to believe 
that a crime has been committed. This is the classical 
level of justification that the police need before they can 
really dig in and go to work. Up to this point they're 
pushing hard just to squeeze themselves into a person's 
business, and relying heavily upon both consent and 
their ability to coax something incriminating out into 
the open. Once they have probable cause, however, the 
question of personal search and seizure becomes one of 
"when" more than of "if," and it extends to whatever 
lengths are justified by the probable cause. 

A person's arrest confers the probable cause necessary 
to justify a full field search r- a general rummaging 
through everything a person has on him, including the 
contents of closed containers.'^ such a search is justified 
without an arrest if there's probable cause to search for 
something in particular and the circumstances consti- 
tute an exigency.5* The use of a warrant is a formal de- 
claration that there exists probable cause to search. It's 
a matter of standard procedure that "the police must, 
whenever practicable, obtain advance judicial approval 
of searches and seizures through the warrant proce- 
dure."" Inserting a magistrate into the decision-making 
process places a greater level of certainty on the prob- 
able-cause justification for a search, and gives authoriza- 
tion for some types of personal intrusion that are too 
aggressive to be left to the discretion of a mere cop. 

Arrest is the basic personal seizure that occurs upon a 
showing of probable cause, it marks the beginning of an 
individual's guided tour through the System — "guided," 
because from this point on he's in the custody of the 
government. The message is driven home when thiey 
clap the cuffs on, a standard bit of police procedure for 
any arrest. If arrest is made at a time when no probable 
cause exists, it's invalid; nothing they can do thereaft# 

- 112 - 



— neither the finding of incriminating evidence, nor the 
giving of Miranda warnings, nor even the issuance of a 
warrant - will cure the unlawful arrest.fVVs Also, arr'! 
rest for a misdemeanor is supposed to be done under' a 
warrant, unless the crime was actually committed In the # 
cop*s presencejsyn some states, this technicality might 
be used to challenge an improper arrest. 

As we've said earlier, probable cause is based on fact 
which is sufficient to warrant a reasonable person to 
believe that somebody has committed a crime." it's 
pretty cut-and-dry when the facts point objectively and 
conclusively to an inference of guilt. Difficulty arises, 
however, when it becomes likely that either the facts or 
the inferences are wrong.^ 

Probable cause based upon an informant's ti[f for 
example, is notoriously risky- the type of mentality that 
would snitch to the cops is no stranger to lies made in 
the self interest. Nevertheless, an inside tip will be 
sufficient when it comes from a rat who's known for his 
reliable information.eo/e^ 

Associations may constitute probable cause if they 
appear to be substantial and relevant enough. Thus, if ^ 
the police have probable cause to arrest one person, and 
there appears to be a working relationship between him f 
and a second party, the probable cause applies to the i 
second person as \Ne\\M Likewise, the probable cause 
against a suspect might be imputed to all the members 
of his family who share his company." Association with 
a suspect parcel is equally as incriminating as that with ^ 
a suspect person;! by taking control of something which 
is under surveillance, a person brings probable cause 
upon himself.60/63 

A further source of probable cause is the suspect's own 
behavior. If the cops want to make an arrest but aren't 
justified in doing so, they can acquire the justification by 
provoking the suspect into resisting arrest." Citizens ; 
have no right to resist an illegal arrest, whether actively 
(With fists, guns, etc.)" or passively (as by gding irmp).«5 



- 113 



A person who resists arrest will therefore provide the 
police with the probable cause they need for a valid ar- 
rest, even though the initial unlawful one would have 
been thrown out of court. 

There's a variety of Fourth Amendment police intru- 
sions other than full search and arrest. Any procedyFf to 
which a person is physically subjected for the puf^Bi^ of 
gathering more information about him can be considef- 
ed a search; any tangible evidence the police get f r©ifn i)t 
constitutes a seizure^ Viewed in this fashion, identifica- 
tion procedures such as visual lineups, photography, 
voice analysis, and fingerprinting are "searches" which 
result in the "seizure" of a person's image, voice record- 
ing, fingerprints, etc. These are such minimal intrusions 
that the police can get warrants for them on just 
reasonable suspicion. 

At the national border, a person may be subjected to 
a strip search if the Customs agents have reasonable 
articulable suspicion that he's carrying contraband.ee 
These same grounds can also serve as justification to sub- 
ject him to an abdominal x-ray,^^ or alternatively, to hold 
him prisoner for as long as it takes to evacuate his 
bowels of any contraband he may have swallowed.68 The 
Ninth Circuit Court of Appeals (which controls the states 
of Alaska, Arizona, California, Hawaii, Idaho, Montana, 
Nevada, Oregon and Washington) says that it takes more 
than just "reasonable suspicion" to justify an X-ray; it 
takes a "clear indication," a "plain suggestion," or 
"substantial suspicion" that the subject has contraband 
in his belly.6V^° This "clear indication" level, which lies 
somewhere between reasonable suspicion and probable 
cause, is satisfied by a solid tip from a snitch, but not by 
mere suspicious observations.^^ The same "clear in- 
dication" is also necessary before Customs agents may 
conduct body cavity searches^^ or administer emetic in 
order to cause the suspect to throw up.'^ Any time the 
cops want to go poking around inside a person's body, or 
remove something from it, they must either have his 
consent or satisfy several conditions. The conditions are: 



114 



(1) there must be a "clear Indication" that incriminating 
evidence will be found during the proposed intrusion, (2) 
there must be either a warrant or an emergency so ur- 
gent that It would be Impractical to get one, and (3) they 
must use a "reasonable" method of Intrusion." 

It's interesting to note how the lower courts have fol- 
lowed these Supreme Court guidelines, in reference to 
the first condition, one federal circuit court held it to be 
justifiable for the police to run In the wife and four small 
children of an alleged drug dealer and do rectal and vag- 
inal searches on all of them.62 Evidently, the Honorable 
Court saw a "clear indication" that the fellow must have 
hidden his contraband there (he didn't, of course)... 

Following the second condition, one state court held 
that the police cannot do a vaginal search against the 
suspect's will unless they can justify it with either a war- 
rant or an emergency that won't wait for a warrant. 
They don't automatically get to do It just because they 
have her In jail." This particular state law represents a 
greater degree of protection to the Individual than the 
Supreme Court has demanded, since body cavity 
searches of prisoners and pre-trial detainees is generally 
permissible, even without probable cause to search.'* 

The third condition was found to be satisfied in the use 
of the so-called "no-choke position" for extracting 
evidence from an uncooperative suspect's mouth; the 
cop jams the suspect's head down so that his jaw is 
forced against his chest, making it difficult to swallow. 
Then he pries open the guy's mouth to get the evidence 
out.75 By contrast, the forcing of emetic solution down 
a person's throat with a stomach pump has been de- 
clared to be an unreasonable method of Intrusion. 
Though it's an effective way to make someone throw up 
any evidence he may have in his stomach. It was con- 
sidered by the Supreme Court to be "too close to the 
rack and the screw.'''^ 

Modern blood-drawing techniques are innocuous 
enough that the method is universally regarded as 

- 115 - 



reasonable. While a warrant is generally necessary," 
blood samples may also be seized incident to lawful 
arrestjs if the subject refuses to permit his blood to be 
drawn incident to arrest, some states allow the refusal 
itself to stand as evidence of guilt (e.g. in drunl< driving 
cases).'9 

The severest level of personal intrusion is that of 
surgery. It occasionally happens that the police will want 
a piece of evidence that's out of reach to anyone but the 
surgeon. A federal court recently considered such a case, 
where the cops wanted a bullet that was lodged in a 
man's chest. Medically speaking, it was preferable to 
leave it alone, but the cops wanted it to use as evidence 
against him in his trial. The court held that a "minor" 
operation, involving a 1.5 cm incision, going just beneath 
the skin, and performed under local anesthesia, would be 
a justifiable intrusion for such a purpose,- but a 5 cm 
incision, going deep into muscle tissue, and performed 
under general anesthesia (as would have been necessary 
in this case), would be too severe a measure. The court 
declared that it was "appalled at the prospect of govern- 
ment authorities rendering a person unconscious, cut- 
ting him open, and probing around inside his body for 
evidence which might, or indeed might not, aid them in 
convicting him of a crime.^o 



REFERENCES 

1. People VDeBOUr, 40 N.Y.2d 210, 352 NE2d 562 (1976) 

2. U.S. V Mendenhall, 446 US 544, 555, 100 set 1870, 1877 
(1980) 

3. U.S. V coins, 699 F2d 832, 834-835 (6th Clr. 1983) 

4. Owens V Kelley, 681 F2d 1 362, 1 367-1 368 (1 1 th Cir. 1 982) 

5. Doe vRenfrow, 631 F2d 91 (7th Cir. 1980) 

- 116 - 



6. Norton V Goose Creek Independent School District, 690 

F2C1 470, 478-479 (5th Cir. 1982) 

7. Ybarra v Illinois, 444 us 85, 93-94, 100 set 338, 343 
(1979) 

8. State vBroadnax, 98 Wash.2d 289, 654 P2d 96, lOO-iOi, 
104(1982) 

9. as V Butts, 704 F2d 701, 704 (3d Clr. 1983) 

1 0. Terry v Ohio, 392 US 1 , 88 SCt 1 868 (1 968) 

1 1 . state V Hobart, 94 wash.2d 437, 61 7 p2d 429, 434 (1 980) 

12. Sibron v New York, 392 us 40, 65, 88 SCt 1889, 1904 
(1968) 

13. People V Lewis, 659 P2d 676, 681 (Colo. 1983) 

14. Florida vRoyer, 460 US _, 103 SCt 1319, 1325 (1983) 

15. A.L.I., A Model Code of Pre-Arraignment Procedure, 
Section 110.2(1), 1975 

16. People V Ellis, ill. App. Ct, 4th Dist, 3/24/83 

17. as. V Jefferson, 650 F2d 854, 858 (6th Cir. 1981) 

18. as. vMoya 704 F2d 337, 342 (7th Clr. 1983) 

19. as vMendenhaii, 446 us at 557-558, lOO set at 1878- 

1879 

20. People V Harrison, N.Y. Ct. App., 11/18/82 

21. Pennsvlvania vMlmms, 434 us 106, ill, 98 set 330, 333 

(1977) 

22. Brown V Texas, 443 US 47, 51-52, 99 SCt 2637, 2641 
(1979) 

23. Delaware v Prouse, 440 US 648, 659-661, 99 set 1391, 
1399-1400(1979) 

24. as vBest, 563 FSupp 1075, 1080 (D.D.C. 1983) 

25. as. VLong, 705 F2d 1259, 1262 (10th Clr. 1983) 

26. Adams V Williams, 407 US 143, 147-148, 92 SCt 1921, 
1924(1972) 



117 



27. U.S. VBautiSta, 684 F2d 1286. 1289 (9th Cir. 1982) 

28. State V Miller, vt. Sup. Ct, 9/7/82 

29. as. V Mason, D.C. Ct. App., 9/9/82 

30. Reid V Georgia 448 US 440, 100 SCt 2752 (1980) 

31. U.S. vBerryman, 706 F2d 1241, 1244 (1st Cir. 1983) 

32. Davis V Mississippi, 394 us 721, 89 SCt 1394, 1398 (1969) 

33. Baker v State, Indiana Sup. Ct, 6/21/83 

34. People V Davis, 669 P2d 130, 133 (Colo. 1983) 

35. state vHall, New Jersey Sup. Ct, 7/14/83 

36. Michigan v Summers, 452 Us 692, 101 SCt 2587 (1981) 

37. U.S. V MOya 704 F2d at 339 

38. US. V Walraff, 705 F2d 980, 990 (8th Cir. 1983) 

39. US V Mendentiali, 446 US at 570 n. 3, 100 set at 1885 
no. 3, J. White dissenting 

40. us V Black, 675 F2d 129, 136 (7th Cir. 1982) 

41. US. V Elmore, 595 F2d 1036, 1041-1042 (5th Cir. 1979) 

42. Florida vRoyer, 460 US at _, 103 SCt at 1326-1327 

43. /Cf., 103 SCt at 1328-1329 

44. Kolender V Lawson, _ us _, 103 SCt 1855, 1862 (1983), 
J. Brennan concurring 

45. Adams V Williams, 407 US at 146, 92 SCt at 1923 

46. Coates V U.S., 413 F2d 371, 374 (U.S. App. D.C. 1969) 

47. Louisiana H.B. 360, Act 686 

48. People V Kelly, Calif. Ct App., 3d DIst, 2/25/83 

49. U.S. V COllWitzer, 697 F2d 1357, 1362 (11th Cir. 1983) 

50. U.S. V Thompson, 558 F2d 522, 524 (9th Cir. 1977) 

51. U.S. VRUSSel, 546 F2d 839 (9th Cir. 1976) 

52. U.S. VMerrItt, 695 F2d 1263, 1273-1274 (10th Cir. 1982) 

53. US V Robinson, 414 US 218, 235-236, 94 SCt 467, 477 
(1973) 



118 



54. Carroll V U.S., 267 US 132, 153-156, 45 SCt 280, 285-286 
(1925) 

55. Terry v Ohio, 392 US at 20, 88 SCt at 1879 

56. RiOS V U.S., 364 US 253, 261 -262, 80 SCt 1 431 , 1 436 (1 960) 

57. Dunaway v New York, 442 US 200, 217, 99 SCt 2248, 
2259(1979) 

58. U.S V Hughes, 201 FSupp 615, 616 (W.D. Pa. 1962) 

59. Wright, Federal Practice and Procedure: Criminal 2d, 
Section 77 (1982) 

60. U.S. vSwayne, 700 F2d 467, 469-471 (8th Cir. 1983) 

61. Illinois V Gates, 462 us _, 103 set 2317, 2329 (1983) 

62. Salinas vBreier, 695 F2d 1073, 1075-1076 (7th Cir. 1982) 

63. U.S V Wllkerson, 478 F2d 813, 815 (8th Cir. 1973) 

64. U.S V Bailey, 691 F2d 1009, 1015-1016 (11th Cir. 1982) 

65. U.S vDanehy, 680 F2d 1 311, 1313-1315 (11th Cir. 1982) 

66. U.S. V Vega-Barvo, 729 F2d 1341, 1345 (11th Cir. 1984) 

67. /flf.at1348 

68. U.S V Mosquera-Ramlrez, 729 F2d 1352, 1355 (iith Cir. 
1984) 

69. U.S V Ouintero-Castro, 705 F2d 1099, iiOO (9th Cir. 
1983) 

70. U.S. V Vega-Barvo, 729 F2d at 1352, J. Hatchett 
dissenting 

71. U.S vBriones, 423 F2d 742, 744 (5th Cir. 1970) 

72. Schmerber v California, 384 US 757, 770-771, 86 SCt 
1826,1835-1836(1966) 

73. State V Clark, 654 P2d 355, 362 (Hawaii 1982) 

74. Bell V wolfish, 441 us 520, 558; 563, J. Powell dissenting,- 
578, J. iviarshall dissenting; 594, J. Stevens dissenting; 
99 SCt 1861, 1884, 1886, 1894, 1903 (1979) 

75. People vLara 166 cai. 475 (1980) 

- 119 - 



76. Roschin V California, 342 US 165, 172, 72 SCt 205, 209- 
210(1952) 

77. Gentry V State, Tex. Ct. Crim. App., 10/27/82 

78. as. V Harvey, 701 F2cl 800, 807 (9th Cir. 1983) 

79. south Dakota v Neville, _ US _, 103 SCt 916, 921 (1983) 

80. Lee V Winston, 551 FSupp 247, 261 (E.D. Va. 1982) 



- 120 



Chapter 9 



PWCES OF 
PRIVACY 




121 - 



"The poorest man may in his cottage bid de- 
fiance to all the force of the Crown, it may be 
frail, its roof may shake; the wind may blow 
through it; the storms may enter, the rain may 
enter, - but the King of England cannot enter; 
all his forces dare not cross the threshold of the 
ruined tenement!" 

William Pitt, Earl of Chatham, Speech to Parlia- 
ment on the excise bill for cider (1763) 



It's been aptly said that the Fourth Amendment pro- 
tects people, not places,^ yet there are certain places 
that are so intimately associated with a person as to ac- 
quire constitutional protections in his behalf. We refer to 
this protection as a "privacy interest" or an "expectation 
of privacy." The principal factor which determines 
whether or not a privacy interest exists is the recog- 
nition by society that it's legitimate and permissible.^ 
Though society doesn't recognize unlawful conduct to 
be deserving of a privacy interest, it does allow that 
there are certain times and places where a person should 
be free from public scrutiny. 

One such privacy interest Is the peace and quiet of the 
home.' Physical disruption of this peace and quiet occurs 
the moment an unauthorized intruder enters a person's 
house,* and reaches its zenith when he ransacks the place 
and assaults the occupant.^ It can also occur without an 
actual entry of the home, as In the case of a police heli- 
copter which noisily hovers 20 ft. above a man's roof 
looking for evidence of crime.^ The Fourth Amendment 
protects this privacy interest by prohibiting these sorts 
of physically disrupting intrusions. 

Another recognized privacy interest is the right to 
relax without the fear of public scrutiny.' It's an import- 



123 - 



ant psychological need of many species, including man, 
to be able to relax away from the stresses of society. 
People need to have a place where they can retire and 
do or say as they please,- society recognizes the home as 
being such a place. A person should feel free to do things 
there that he'd be inhibited from doing in public. Closely 
related to this is the interest in public esteem - the 
right of a person to Iceep to himself what he thinks 
might bring him public censure.^ People often have 
thoughts, beliefs, customs, or habits that they prefer 
not to advertise due to public prejudices, among other 
reasons. Of course, society doesn't include illegal activit- 
ies among the "legitimate" sorts of things that a citizen 
might be entitled to do in private,^ but it's pretty diffi- 
cult for the police to make the distinction without first 
violating the privacy. The Fourth Amendment protects 
these relaxation and public esteem interests by pro- 
hibiting unauthorized spying on an individual's private 
life.V8 

There's no all-or-none limitation on the extent or 
nature of a person's expectation of privacy. He may re- 
tain it with regard to certain people - uninvited guests 
as opposed to invited ones, for example — or with re- 
gard to certain parts of his home, where even invited 
guests are not welcomed.^ Just because he invites a large 
group of people into his home, that doesn't make it a 
"public place" where the cops are entitled to go.^o 
Privacy expectations can be contracted and expanded 
independently for different aspects of a situation. Thus, 
when someone uses a public phone booth to make a pri- 
vate call, he resigns himself to the public view while 
retaining an expectation that his conversation will not 
be overheard. Similarly, when a person uses a hotel room, 
he doesn't expect the same level of privacy from the 
walls of adjoining rooms or the hallway outside his door 
that he enjoys in his own house; he realizes that he 
shares these aspects of hotel life with other people. 



124 



Nevertheless, he maintains the same privacy interest in 
the security of the room as for the bedroom of his own 
house.9 

A time-honored maxim, sometimes attributed to the 
Roman statesman Pliny, claims that "home Is where the 
heart Is." Although this does reflect the general philos- 
ophy of the law, there are criteria which define the 
home more specifically for the purposes of the Fourth 
Amendment, it's a person's use and control of a place 
that makes It his home and gives him a corresponding 
expectation of privacy in it. If he owns It, so much the 
better; but a person has the same privacy Interest In a 
rented home as he does in one he owns. Likewise, a short- 
term rented home, such as a hotel room. Is no less a sanc- 
tuary than a long-term home.^^ The fact that he lives In 
It justifies his expectation of privacy, regardless of who 
pays the bills or whether he may additionally choose to 
do a little business there.^^ |f someone's been granted the 
use and control of another person's place, and lives there 
as though he owns it, he bears the same privacy Interest 
in that place as he would In any home."/^* Points of 
persuasion that will substantiate such a claim include the 
possession of a key, storage of personal property on the 
premises, eating and sleeping there, and full access to the 
entire home. They're the sorts of privileges that might 
ordinarily be accorded to "one of the family." 

The casual visitor, to whom no such authority has been 
granted, doesn't enjoy a privacy interest In his host's 
place. Though he sleeps, eats, and has some belongings 
there, his status as a transient houseguest might be 
insufficient to invest him with an expectation of pri- 
vacy. Where there's no semblance of privacy owing to 
the rapid turnover of visitors to a house, even a long- 
term visitor might not have a legitimate expectation of 
privacy there. Such a situation exists in a "drop house" 
where illegal aliens are temporarily sheltered." 

As In William Pitt's famous words at the beginning of 
this chapter, it's often implied that there's a magical 



125 - 



quality inherent to the threshold of a man's "castle," in- 
side that boundary lies sanctuary, where the odious 
forces of despotism cannot go. The United States Su- 
preme Court has, in fact, given support to this idea that 
the structural boundaries of a building represent lines of 
Fourth Amendment protection, in its keynote case on 
the subject, it declared that only a warrant or an exi- 
gency will justify the cops to enter a person's house 
without his permission.^^ 

The requirement of a search warrant has been histor- 
ically linl<ed to criminal investigations, but a person's 
home is equally entitled to its protection when the 
authorities seek to enter for other reasons. City inspect- 
ors have tried to bully their way into the home without 
warrants by invoking local housing codes; if the citizen 
refused to let them in, they'd throw him in jail. The 
Supreme Court put a stop to this with the ruling that, 
unless they have a legitimate public health emergency, 
civil inspectors must have a search warrant to enter the 
home.^^ Unlike a crime, where probable cause is the basis 
for issuing the warrant, the public interest in health and 
safety only requires that there be "reasonable legislative 
or administrative standards" as the basis for such a 
warrant. 

Such events as a fire^^ or a shootout" ^ are understand- 
able exigencies, but the police are also inclined to regard 
a nice juicy drug bust as an emergency, since the per- 
petrators are likely to flush the evidence as soon as they 
smell a cop.^o The dilemma for the cops, however, is that 
they have no way of knowing from the outside of a 
building that such activities might be in progress inside. 

A fourth justification for the cops to intrude, one 
which wasn't mentioned in the keynote Payton case, is 
the "incident to lawful arrest" excuse. The justifications 
for breaching the privacy of the home will be the subject 
of the following chapter. 

The Fourth Amendment's protection of the house 
doesn't stop at the threshold,- outside, for an indefinite 



126 



distance surrounding tlie house, there exists a zone 
which carries much the same expectation of privacy as 
the house. The courts have created this concept over the 
years, and refer to this protected area as the "curtiiage" 
of the dweliing. How far out it extends depends upon 
the iayout of the property, it typicaiiy inciudes the area 
within a fenced yard,2i and might inciude nearby buiid- 
ings, such as a garage^^ or a barn.^^ Buildings as far as 80 
yards away have been considered to lie within the 
curtilage of a house.^^ Factors which tend to embrace a 
structure within the curtilage include (1) proximity or 
annexation to the house. (2) structures suggesting 
propinquity and absence of barriers (such as a driveway 
between the house and building), (3) inclusion within the 
general enclosure surrounding the house. (4) habitual use 
for family purposes, and (5) indications that the owner 
sought to protect a privacy Interest'V^s in layouts such 
as an apartment building, the concept of curtilage loses 
meaning; the area outside one tenant's home overlaps 
with that of other tenants, and a number of compli- 
cations enter the picture. For this reason, some lower 
courts have disregarded the concept of curtilage, and 
instead hold that certain areas adjacent to the home are 
protected simply because a resident seeks to preserve a 
privacy interest in them, even though they may be ac- 
cessible to the public. Where tenants l<eep a corridor 
private by locking its outer door, for example, they 
might thereby acquire Fourth Amendment protection 
for it.26 

It's worth noting that a house guest, even one who has 
the full run of the place, might not have a recognized 
privacy interest in the curtilage." 

Beyond the curtilage of a house, a person's property 
loses most of its Fourth Amendment protection. After 
all, it must be remembered that the Fourth Amendment 
protects a person's privacy interests, not his possessory 
interests." His open fields and the lands distant from his 
house have virtually no constitutional protection from 
search and seizure by the police.^e it's true that a land- 



- 127 



owner has a certain degree of privacy protection by 
virtue of his right to i<eep others off his iand.V^^ but un- 
less he can physically be there to turn them away, that 
right is lil<ely to be meaningless. The cops can ignore his 
"no trespassing" signs, enter his land without a warrant, 
and take away evidence that they can use against him 
in court.50 They can get away with all this because the 
exclusionary rule doesn't apply to evidence seized from 
"open fields," and any legal remedies that the owner may 
have against them for trespassing are purely illusory .^^ 
Just try to fight City Hall some time, and see how far you 
get. Furthermore, even if the cops are turned away on 
the ground, they can still fly over and use what they see 
from the air as the basis for a search warrant. Although 
one lower court recently expressed the assurance that 
"the Constitution does not require that one erect a 
stone bastion, or retreat to the cellar to exhibit a 
reasonable expectation of privacy,"" it's risky to place 
any confidence in the privacy of property outside the 
curtilage of the home. In the urban setting, structures 
such as the parking garage of a condominium have been 
held to be devoid of Fourth Amendment protection." 

Abandoned premises carry no legitimate expectation 
of privacy ,'« but ownership confers a certain amount of 
privacy interest by virtue of the owner's right to ex- 
clude other people from his property.^ vacant apart- 
ments within an active complex, for example, are not 
"abandoned premises," even though they may be in 
disrepair and standing open for anyone to see in.'^ The 
owner of such apartments is still legally entitled to a cer- 
tain level of privacy for them (against warrantless entry, 
for example). 

Although the Constitution specifically refers to 
"houses" in its Fourth Amendment wording, it's been 
generally accepted that the founders meant for this to 
include business property, too. Like privacy interests 
elsewhere, those concerned with a business may be 
contracted and expanded for different circumstances. A 
retailer, for example, is entitled to expect that his 



128 



merchandise won't be subjected to wholesale search and 
seizure by police, even though it's on public display for 
customers.56 uicewise, a bar owner who calls the police 
because of a shooting on the premises has a right to ex- 
pect that his place won't be subjected to a warrantless 
search." 

A person's privacy interest in commercial property is 
largely determined by whether or not he has ownership 
rights to it.'s out other factors can enter in and confer 
the interest upon an employee as well. Plans to assume 
ownership in the future, and having major control and 
responsibility in the business, are two such factors." 
Legitimate expectations that one's belongings will be 
safe from search and seizure can even exist in a shared 
office, where a worl<er has neither proprietary rights nor 
exclusive control of the area,- the non-public nature of 
the place is itself sometimes sufficient.'^ 

The zones of Fourth Amendment protection on busi- 
ness property are roughly parallel to those of the home, 
except that any area where the public is allowed to go 
is naturally devoid of most privacy interests.*° It's just as 
necessary for the police to have a warrant to search 
commercial premises as it is for them to search a house, 
and it doesn't matter whether they're doing a criminal 
investigation,^^ a city administrative inspection,''^ or a 
federal administrative inspection.^° Probable cause for a 
civil administrative search can be based on either specific 
evidence of some existing violation or simply a showing 
that they have reasonable legislative or administrative 
standards for searching a particular place.^' Just as for 
criminal investigators, it's no excuse for civil inspectors 
to claim that it's too inconvenient for them to get a 
warrant.^ 

ijniike the situation at home, the public nature of a 
place of business mal<es it unnecessary for the cops to 
have a warrant to arrest a person at work.^s Also, a 
consequence of conducting certain types of business is 
that it's possible to become automatically subject to 



129 



warrantless searches. Government contractors, for 
example, may be subjected to warrantless audits of their 
business records/^ Pharmacists,*' gun dealers,*^ and 
establishments that serve liquor^^ can expect warrant- 
less inventories and searches of their merchandise. 
Mining operations may be inspected for safety condi- 
tions at any time without a warrant^o 

As with the home, commercial buildings can have a 
recognized expectation of privacy in their curtiiage.^s 

Whether he's at home, at work, or elsewhere, a person 
is constitutionally entitled to freedom from police 
espionage of his private life. Society recognizes that he 
has a reasonable expectation of privacy for such places 
as his house, a phone booth, and a taxicab,^ and unauth- 
orized police intrusion of these places with any l<ind of 
listening or surveillance device is iilegai.sv" Moreover, a 
person has a right to expect privacy concerning all 
conversations that tal<e place within his house, even 
when he's not present.^ The one serious gap in a person's 
otherwise legitimate expectation of privacy is the pos- 
sibility that a trusted friend could be an informer or an 
undercover cop. because a person has no expectation of 
privacy for statements that he makes in front of such 
vermin.55 it's a sad commentary on society that, more 
often than not, there's a rat in friend's clothing nearby... 



REFERENCES 

1. KatZ VU.S., 389 US 347, 351-352, 88 SCt 507, 511 (1967) 

2. Rakas V Illinois, 439 US 128, 143-144 n. 12, 99 SCt 421, 
430-431 n. 12 (1978) 

3. U.S. V Kramer, 711 F2d 789, 793 (7th Cir. 1983) 

4. U.S. V us District Court, 407 US 297, 313, 92 SCt 2125, 
2134(1972) 

5. Mapp V Ohio, 367 us 643, 644-645, 81 SCt 1684, 1686 
(1961) 



130 - 



6. People V Sneed, 32 Cal. App. 3d 535, 108 Cal. Rptr. 146 
{Cal.CtApp.1973) 

7. KatZ V U.S., 389 us at 359, 88 SCt at 51 5 

8. U.S. V Alderman, 394 US 165, 176, 89 SCt 961, 968 (1969) 

9. as. V Lyons, 706 F2d 321, 325-327 (U.S. App. D.C. 1983) 

10. Recznik v City of Lorraine, 393 US 166, 168-169, 89 SCt 
342,344(1968) 

11. Stoner v California, 376 US 483, 490, 84 SCt 889, 893 
(1964) 

12. Mowrer V state, Indiana Ct. App., 4th Dist., 4/19/83 

13. U.S. V Torres, 705 F2d 1287, 1295-1296 (11th Cir. 1983) 

14. as. V Jones 362 us 257, 259, 267, 80 SCt 725, 730, 734 
(1960) 

1 5. as. V Briones-Carza, 680 F2d 417, 420-421 (5th Cir. 1982) 

16. Payton vNew York, 445 us 573, 589-590, 100 SCt 1371, 
1381-1382(1980) 

17. Camara v Municipal Court, 387 US 523, 538-540, 87 SCt 
1727,1736-1737(1967) 

18. Michigan v Tyler, 436 US 499, 509, 98 SCt 1942, 1950 
(1978) 

19. Mincey v Arizona, 437 US 385, 392, 98 SCt 2408, 2413 
(1978) 

20. Ker V California, 37a us 23, 37-41, 83 SCt 1623, 1632- 
1634(1963) 

21. HObSOn V US., 226 F2d 890, 894 (8th Cir. 1955) 

22. Taylor V U.S., 286 US 1, 52 SCt 466 (1932) 

23. Rosencranz v U.S., 356 F2d 310, 313 (1st Cir. 1966) 

24. walker V U.S., 225 F2d 447, 448-449 (5th Cir. 1955) 

25. Wattenburg V U.S., 388 F2d 853, 857-858 (9th Cir. 1968) 

26. as vFIUker, 543 F2d 709, 716 (9th Cir. 1976) 

27. warden v Hayden, 387 US 294, 304, 87 SCt 1642, 1648 
(1967) 

- 131 - 



28. Hester V U.S., 265 US 57, 59, 44 SCt 445, 446 (1924) 

29. as. 1/ Swart, 679 F2CI 698, 702 (7th Cir. 1982) 

30. Oliver V U.S., _ US,_ 104 SCt 1735, 1743 (1984) 

31. Mapp V Ohio, 367 US at 670, 81 SCt at 1700, J. Dougias 
concurring 

32. Wheeler v State, Texas Ct. Crim Appls., 9/29/83 

33. U.S. V Cruz Pagan, 537 F2cl 554, 558 (1st Cir. 1976) 

34. Abel V U.S., 362 US 217, 241, 80 SCt 683, 698 (1960) 

35. Wilson V Health Hospital Corp. of Marion City, 620 F2cl 
1201, 1213 (7th Cir. 1980) 

36. LO-Jllnc. VNew York, 442 US 319, 329, 99 SCt 2319, 2326 
(1979) 

37. State V Young, 135 Ariz. 437, 440-441, 661 P2d 1138, 
1141-1142 (Ariz. App. 1982) 

38. Brown V U.S., 411 us 223, 229, 93 SCt 1565, 1569 (1973) 

39. Mancusl V DeForte 392 US 364, 367-369, 88 SCt 2120, 
2123-2124(1968) 

40. Marshall v Barlow's, 436 US 307, 315, 98 SCt 1816, 1822 
(1978) 

41. U.S VLefkOWitZ, 285 US 452, 52 SCt 420 (1932) 

42. See V City Of Seattle 387 US 541, 543-544, 87 SCt 1737, 
1739-1740(1967) 

43. Marshall V Barlow's, 436 US at 320, 98 SCt at 1824 

44. U.S. V Johnson, 333 us 10, 15, 68 SCt 367, 369 (1948) 

45. US vBlalOCk, 578 F2(J 245, 248 (9th Cir. 1978) 

46. zap V U.S., 328 US 624, 628, 66 SCt 1277, 1279 (1946) 

47. Title 21 U.S.C. Section 880 (c) 

48. U.S vBISweii, 406 US 311, 316, 92 SCt 1593, 1596 (1972) 

49. Colonnade Corp. V U.S., 397 us 72, 76-77, 90 SCt 774, 777 
(1970) 

50. Donovan v Dewey 452 US 594, 603, 101 SCt 2534, 2540 
(1981) 

- 132 - 



51. Silverman VU.S., 365 US 509, 511, 81 set 679, 682 (1961) 

52. as. VKaro, _ us, _ 104 set 3296, 3304 (1984) 

53. HOffa VU.S., 385 US 293, 311, 87 SCt 408, 418 (1966) 



133 



Chapter 10 



BREACHING 
THE CASTLE GATE 




135 



"The king's keys unlock all doors." 

Justice Byron R. White dissenting in Payton v 
New York, 445 US 573, 604, 100 SCt 1371, 1389 
(1980). 



Having measured the extent of the wall of constitu- 
tional protection that surrounds the house, let's look at 
the ways In which the cops can break through it. On a 
basic level, the search and seizure issue for the house is 
similar to that for the person, with the gaps in its con- 
stitutional armor being the same ones of consent, 
warrant, exigency, and arrest. One major difference, 
however, is that there's no justification for an "Inter- 
mediate Intrusion" into a house based on reasonable 
articulable suspicion - the police aren't entitled to enter 
and conduct a "protective" search of a house the way 
they do a rerr/ frisk of a person.^ 

As with all police intrusions, the easiest way in is by 
consent, and nobody has more authority to grant it than 
the owner. When it's coerced at gunpoint, however, it 
hardly qualifies as legitimate consent.^ Another eventu- 
ality that might invalidate a suspect's consent to search 
is a violation of his right to an attorney. An arrested 
person can legitimately give his consent without the 
benefit of counsel, but once he invokes his right to see 
an attorney, the law says that the cops must stop all 
questioning' - and that includes requests for consent to 
search.* Any grant of consent that somebody gives after 
asking for and being denied legal counsel might be re- 



137 - 



garded as the product of coercion,- unless the suspect re- 
tracts and waives his request for counsel, his consent is 
questionable. By retracting and waiving his request, the 
fellow demonstrates that It's his own considered deci- 
sion to permit the search of his house without first con- 
sulting his attorney. 

The cops can sometimes get a third party to let them 
Into a suspect's house, and that counts as valid consent 
If he has the authority to give It. A parent has that 
authority when It comes to granting consent to search 
his minor child's room.^ A person's roommate has the 
authority because of mutual rights to the premises.^ 
When the cops mistakenly take their consent from some- 
one who Isn't entitled to give It, however, it can spoil the 
legality of their search. Consider, for example, the case 
of a grandparent who consented to a warrantless search 
of her nineteen-year-old grandson's room. The cops mis- 
takenly believed that her parental custody status and 
her ownership of the house entitled her to grant the 
consent; the young man had been paying rent and 
maintaining his exclusive use of the room, however, and 
the court ruled that the old lady had no right to give 
such consent.^ it can sometimes be a close question, de- 
pending on the facts of each case, but the main consid- 
eration Is whether or not the third party is violating the 
suspect's legitimate expectation of privacy by granting 
the consent for police to enter, it's long been settled 
that people such as landlords and hotel clerks are not en- 
titled to give the police permission to enter a guest's 
room.8 

The third way that the cops can acquire consent to 
enter their quarry's premises is Indirectly through the 
use of guile and trickery, it's Incredible how these hypo- 
crites, who profess such Indignation at the artistry of 
the con man, can freely employ all manner of deceit 
when it suits their own purposes. They've made betrayal 
their most Important tool through the widespread use 
of snitches and undercover cops.^/^" They use ruses such 
as the old "stranded motorist who needs to use the 



- 138 - 



phone" routine to trick their way into peopie's houses 
for covert investigationai purposes.^^ They've even gone 
so far as to hire out as domestic servants,- one of them 
worl<ed as a handyman for six months in order to rifie 
the employer's home for evidence." The Supreme Court 
ruied iong ago that a pretext is just as unconstitutional 
as force or coercion for the purpose of gaining entrance 
to someone's house or office," but the courts these days 
seem to regard it as merely an expression of constabu- 
latory creativity. Once a rat gets inside a house by ex- 
ploiting the uninformed consent of the householder, he's 
legally entitled to open the doors to all the rest of the 
cops outside - consent given to one cop is consent given 
to all of them.iv« 

Lacking valid consent, a warrant's the best ticket for 
admission into a private house. The warrant stands for 
probable cause, it can be probable cause to search or 
probable cause to arrest,- when they're out to make an 
arrest it doesn't really matter, because either type of 
warrant will legally get them past the front door. Even 
though it traditionally takes a search warrant to justify 
entering a house, it's been settled that an arrest warrant 
will do just as well when the suspect's in his own place.^^ 
At somebody else's house, where the arrestee has no pri- 
vacy interest, they can still get away with having just an 
arrest warrant because (1) the unauthorized entry 
doesn't violate the visiting arrestee's rights, and (2) the 
arrest doesn't violate the householder's rights. Neither 

one has grounds to challenge the legality of the 
arrest."/^8 

Of course, the entry is a significant violation of the 
householder's rights; police who intrude on the sanctity 
of a person's home with neither a search warrant nor 
the excuse of an exigency are simply not where they be- 
long. Any incriminating evidence that the cops may for- 
tuitously discover in such a situation is unusable against 
the householder because of the invalid entry .^^ 



139 



Police who want to make a warranted search of a par- 
ticular house can often get the grounds for their war- 
rant from what they see there. The only catch Is that 
they have to do their snooping from a place where they 
have a right to be-^o/^^ 

The manner in which a warrant is executed may differ 
greatly from the traditional concept of a warranted 
search. The victim of a warranted bugging or wiretap, 
for example, won't even know of any warrant until 
sometime after-the-fact, when he's already sitting In jail, 
because the cops sneak in and plant their listening de- 
vices in complete secrecy.^^ such warrants are. In effect, 
licenses to commit burglary. Another novel way of 
serving a warrant is by kicking the door in - the so- 
called "no-knock" entry. As will be discussed shortly, the 
cops are supposed to knock, identify themselves, and tell 
the occupant why they've come before they enter his 
house, in some states, however, they can actually get 
the court's advance permission to dispense with such 
nicities by having the magistrate Issue "no-knock" war- 
rants. They're usually used for drug busts, but the mere 
fact that drugs are involved isn't enough reason to issue 
one. In order to get such a warrant, there needs to be 
some specific reason to believe that evidence would 
otherwise be destroyed.^ 

While the citizen might expect them to properly 
produce their warrant for him to see when they come 
to make their search, the police around the country have 
come to depend more and more upon the use of verbal 
authorization over the telephone. The magistrate Is 
supposed to record the phone conversation on tape for 
transcription, and the actual warrant shows up some- 
time later, after the search is over. Obviously, such an 
arrangement allows ample opportunity for the cops to 
fudge with their warrants. There are some places where 
the courts require that a warrant be physically on the 
scene before a house can be entered and searched.^* 



140 



If the police have neither consent nor a warrant to 
justify their invasion of private ground, the existence of 
an exigency will always do. Even when they l(now that 
a felony's been committed, and have probable cause to 
go into a house after the evidence, there still has to be 
an emergency of some kind to justify doing it without 
a warrant."/" Any situation where somebody's life 
appears to be in danger is justification for them to burst 
into a house to render "immediate aid."" When they're 
in hot pursuit of a suspect whom they've been chasing 
through the streets, they're entitled to follow him into 
a house without further adieu." 

These are the l<inds of heroics that a cop dreams about 
- smashing dramatically through the door, gun in hand, 
just lil<e his favorite TV detective — seizing immediate 
control of the place, and saving the day for all the grate- 
ful, adoring citizens whose very lives hang in the balance. 
Granting their characteristic psychological need to con- 
stantly reaffirm their machismo, it's no wonder that 
cops tend to eagerly grasp any opportunity that has the 
earmarlcs of an exigency in order for a chance to play 
Dicl< Tracy. The possibility that a criminal suspect might 
be about to run, destroy evidence, or endanger the pub- 
lic safety, are all exigent grounds for the police to enter 
a private building. They're often far less obvious than 
the "immediate aid" and "hot pursuit" exigencies, 
however, and consequently more difficult to be certain 
about. To restrain some of the zeal with which the cops 
would otherwise be freely breaking into homes under 
contrived "exigencies," the courts have adopted guide- 
lines to assess whether or not a true crisis exists for each 
case. One such standard, which was set forth in the 
Dorman case, recommended that the police make a con- 
sidered decision before each exigent entry based upon 
(1) the gravity of the offense (especially whether It in- 
volved violence), (2) the suspect's likelihood of being 
armed, (3) the existence of probable cause, (4) strong 
reason to believe that the suspect is inside the building, 
(5) the likelihood of his escape if he Isn't swiftly appre- 



141 



hended, (6) the peacefulness of the proposed entry, and 
(7) the time (day or night) of the proposed entry » other 
courts have recognized that it's probably asking too 
much to expect a cop to provide the level of brain- 
power needed to apply the Dorman standard; they 
instead merely ask that there be reasonable grounds to 
believe that "if an Immediate arrest were not made, the 
accused would be able to destroy evidence, flee, or... 
endanger the safety or property of others."5o/'^ 

in addition to police and fire emergencies, it's possible 
for a public health problem to be of such compelling 
proportions that it justifies an exigent entry of private 
property." Such measures might be necessary in order 
to halt the distribution of unwholesome food or the 
spread of disease. 

A critical point to realize Is that all these warrantless 
exigencies will legally place the public officials in a 
position from which they can see things which are 
ordinarily private. Whether they're uniformed police- 
men, firemen, city housing inspectors, or public health 
officials, they're still basically cops; they're all likely to 
react to the discovery of contraband or other incrimin- 
ating evidence by kicking off an immediate investigation. 
Just because their exigency justifies them to enter a 
house, it doesn't give them a license to go rummaging 
about; they're only supposed to be there for the purpose 
of handling the exigency. Should they inadvertently 
come across some incriminating evidence during the 
course of their work, however, they're just as entitled to 
seize it as if they had a search warrant for it." Worst of 
all, it doesn't matter who or what the cops are after 
when they enter a house; the evidence that they find 
there in "plain view" is incriminating to the occupants, 
unlike the situation where they enter on the authority 
of a warrant for the arrest of a visitor," the cops who 
enter under exigent circumstances can use that "plain 
view" evidence against the householder." 



142 



In addition to justifying a warrantless entry, an 
exigency can sometimes justify the temporary warrant- 
less seizure of a place - or in police parlance, "securing 
the premises." When they thinl< they have incriminating 
evidence inside and don't want to risk having someone 
remove or destroy it, they'll seal off access to it and 
stand guard over it until such time as they have their 
search warrant. Then they can go in and legally seize 
whatever it is they're after. It ought to be illegal for the 
cops to deny a person access to his own house, yet the 
Supreme Court has taken a permissive attitude toward 
this policy, holding that a warrantless seizure of pre- 
mises is reasonable even if a warrantless search is not.''' 
Other courts have rationalized the securing of premises 
either by claiming that it was justified by an exigency or 
that it played no part in actually acquiring the evi- 
dence." Thus, by one rationale or another, the cops 
invariably get away with their warrantless securing of 
premises. 

Another special form of intrusion that's related to 
exigency is the "no-knock" entry. There's no advantage 
like the element of surprise, and cops have been using it 
to get the drop on outlaws ever since Alley Oop first 
kicked in the front door to Somebody's cave. Breaking 
down the door to a man's house began to be frowned 
upon as individual rights came to acquire some recogni- 
tion during the fifteenth century," and in 1948 the 
United States Congress enacted a statute dictating that 
a cop who's executing a search warrant may break open 
a door only if, after notifying the occupant of his author- 
ity and his purpose, he's still denied admittance.'^ jhe 
purpose of such a rule is to (1) reduce the likelihood of 
violence from situations where the police mistakenly 
break into the wrong house, (2) prevent needless damage 
to private property, (3) show respect for the privacy of 
the home, and (4) give the occupant a brief opportunity 
to straighten up his "personal affairs" before the cops 
enter.59 



143 - 



The Supreme Court has given its approval to this 
l<nocl(-ancl-announce rule, though granting that there 
still may be times when the people Inside wouldn't need 
to be given a notice of authority and purpose because 
they already know it.«o it also says that the police should 
follow the knock-and-announce rule even when there's 
no need to use force to get In (as when the door is un- 
locked, or when they have a passkey).*^ it doesn't say 
that the cops can't make exceptions to the rule, or use 
ruses to trick their way into a place. The recognized 
exceptions to the knock-and-announce rule are when (1) 
there's nobody there to refuse admittance and they 
have to let themselves in, (2) the people Inside already 
know of the officers' authority and purpose, (3) someone 
inside Is In immediate physical peril, (4) the people inside 
are busy destroying evidence or making a getaway, and 
(5) the cops are afraid that it might be dangerous to 
themselves to announce their authority and purpose-'^ if 
the police think that the totality of circumstances In a 
situation add up to one of these exceptions, they're 
entitled to go ahead and do a no-knock entry .^^ 

Though the words of the statute specify only search 
warrants, it's been accepted that the knock-and- 
announce rule applies equally to the execution of arrest 
warrants.'^ It shouldn't be assumed that this rule affords 
the occupant any substantial measure of time, however,- 
the cops are likely to knock the door down if It isn't 
opened within 15 seconds,*' and that's hardly enough 
time to pull up your pants, much less "clean up" the 
place. 

The fourth way in which the cops can penetrate the 
constitutional "force field" of a house is through the use 
of a lawful arrest which began outside it. Just as a person 
may be searched Incident to lawful arrest, so may a 
house be entered under analogous reasoning, it's settled 
law that, with probable cause, the cops can arrest a per- 
son in public without a warrant.** By stretching the 
grasp of that doctrine a bit, the Supreme Court has 
made it apply as well to a suspect who's standing in pub- 



- 144 



lie view from the thresfiold of his house.^s jhus, even 
though he's standing within the constitutionaliy- 
protected confines of his home, he's subject to "public 
arrest" because he's visible to the cops and because they 
can claim that as the beginning of their arrest. Should he 
slam the door on them, they're justified in breal<ing in be- 
cause (1 ) the arrest has already begun, so they're entitled 
to enter incident to lawful arrest, and (2) evasive 
behavior would suggest an intent to escape or destroy 
evidence, and that turns the situation into an exigency. 
As the Court states, "a suspect may not defeat an arrest 
which has been set in motion in a public place... by the 
expedient of escaping to a private piace."« Although the 
original case concerned a suspect who was actually 
standing in her open doorway, lower courts have 
twisted the logic of this holding even further by apply- 
ing it to cases where the suspect was well inside and only 
opened his door a crack.''« 

If a person has already been placed under arrest out in 
public, and is foolish enough to bring the cops back to his 
house, there too is an opportunity for them to legiti- 
mately enter his place; a cop is entitled to remain at the 
side of his arrestee at all times, so if he lets the chump 
go into his house, the cop's entitled to tag along too.*^ 

The right of the police to search goes along with their 
right to enter a place incident to lawful arrest, and it 
literally hangs like a black cloud over the head of the 
suspect. If he's in his front yard when they arrest him, 
their search must be restricted to that area; if he's inside 
his house, they're justified to search the entire room. 
Wherever he happens to be, they're entitled to search 
the area around him for as far as he might possibly grab; 
all other distinctions of distance, location, etc. are 
meaningless.^^ Assuming that their search is being con- 
ducted in a properly limited fashion, they can also seize 
anything that lies in plain view beyond the suspect's 
grabbable range." 



145 - 



The analogy with a search of the person incident to 
lawful arrest doesn't hold up to the extent of permitting 
an "inventory search" of his house when he's arrested 
there. An inventory search of those possessions that go 
along with him to the stationhouse is standard policy.*^ 
But the cops can't use that rationale as an excuse to 
gather up items from personal premises such as his hotel 
room.50 

The foregoing has been a discussion of the ways in 
which police can defeat the legitimate Fourth Amend- 
ment protections that we enjoy for our houses. There 
are, however, further intrusions on our privacy that the 
police can mal<e without even concerning themselves 
about our rights. These are the intrusions into aspects of 
our privacy which the Constitution doesn't protect. Tal<e 
garbage, for example (yes, please... take my garbageD^^ if 
you want to l<eep something secret you can always de- 
stroy it, but the Constitution doesn't protect the pri- 
vacy of the things you throw away. Even if the cops 
trespass into the curtilage surrounding your house in 
order to pick up your garbage, it still doesn't violate your 
rights to peace and quiet, relaxation, and public esteem. 
As far as the courts are concerned, such an intrusion is 
not a violation of the Fourth Amendment." 

Lil<ewise, the use of modern technology to snoop on a 
person's activities isn't always unconstitutional just be- 
cause it impinges in some way on his home. The phone 
company has a technique called the "pen register," 
whereby it can centrally accumulate a record of all tele- 
phone numbers that are dialed from a given house, we 
all l<now (or should know) that the phone company is in 
bed with the government, and that any information we 
feed into it will be freely passed on to the police, it's 
therefore been ruled that a person has no legitimate ex- 
pectation of privacy in the telephone numbers that he 
dials from his own house,- the Constitution simply doesn't 
protect that aspect of privacy .55 similarly, the location 
of a person's house by means of an electronic trans- 
mitter that the cops secretly attach to his car is no 



146 



violation of his Fourtli Amendment riglits." Such a 
device doesn't provide any information that couldn't be 
seen by an observer from public land, and a person has 
no right to expect any privacy concerning his move- 
ments on public thoroughfares. The beeper simply makes 
it possible for Big Brother to keep his eye on us a little 
more closely - and that's not so unreasonable, is it? 
After all, it /s 1984... 



REFERENCES 

1. State V Davis, 295 Or. 227, 666 P2d 802, 811-812 (Or. 
1983) 

2. People V Challoner, Cal. Ct. App., 2d Dist., 10/21/82 

3. Edwards v Arizona, 451 US 478, 485, 101 SCt 1880, 1885 
(1981) 

4. U.S. V McCraney, 705 F2d 449 (5th Cir. 1983) (no pub- 
lished opinion,- see Criminal Law Reporter zz CrL 2131- 

2132) 

5. in Interest of Salyer, 44 III. App. 3d 854, 3 III. Dec. 648, 

358 l\IE2d 1333 (1977) 

6. U.S. V Matlock, 415 US 164, 170-171, 94 SCt 988, 993 
(1974) 

7. State V carsey, 295 Or. 32, 664 P2d 1085-1086 (Or. 1983) 

8. Stoner v California, 376 US 483, 489-490, 84 SCt 889, 893 
(1964) 

9. HOffa V U.S., 385 US 293, 311, 87 SCt 408,418 (1966) 

10. Lewis V U.S., 385 US 206, 209-210, 87 SCt 424, 426-427 
(1966) 

11. State vAhart, Iowa Sup. Ct., 9/29/82 

12. Baldwin V U.S., 450 US 1045, 101 SCt 1767 (1981), 

Memorandum Decision, J. iviarshall dissenting 

- 147 - 



13. COUled V U.S., 255 us 298, 305-306, 41 SCt 261, 263-264 
(1921) 

14. as. V Schuster, 684 F2d 744, 748 (11th Cir. 1982) 

15. State vCantrell, Fla. Ct. App., 2cJ Dist, 1/19/83 

16. Payton vNew York, 445 US 573, 602-603, 100 SCt 1371, 
1388(1980) 

17. U.S vBuckner, 717 F2d 297, 300 (6th Cir. 1983) 

18. U.S V Underwood, 7M F2d 482, 484 (9th Cir. 1983) 

19. Steagald V US., 451 US 204, 222, 101 set 1642, 1652- 
1653(1981) 

20. Wilson V Health & Hospital Corp. of Marion City, 620 F2d 
1201, 1209-1210 (7th Cir. 1980) 

21. US VKnottS, 460 US 276, 103 SCt 1081, 1086 (1983) 

22. Dalia V U.S., 441 US 238, 256-259, 99 SCt 1682, 1693 
(1979) 

23. Commonwealth vScalise, Mass. Sup. Jud. Ct., 9/15/82 

24. Riley V State, Florida Ct. App., 3d Dist, 3/29/83 

25. Payton vNew York, 445 US at 590, 100 set at 1382 

26. Coolldge v New Hampshire, 403 US 443, 468, 91 SCt 

2022,2039(1971) 

27. Mlncey V Arizona, 437 US 385, 392, 98 SCt 2408, 2413 
(1978) 

28. Warden v Hayden, 387 US 294, 298-299, 87 set 1642, 

1646(1967) 

29. Dorman VUS., 435 F2d 385, 392-393 (U.S. App. D.C. 1970) 

30. State V canby, 252 SE2d 164, 167 (W. va. 1979) 

31. state V Guertin, Conn. Sup. Ct, 6/21/83 

32. Camara v Municipal Court, 387 us 523, 539, 87 SCt 1727, 
1736 (1967) 

33. Coolldge v New Hampshire, 403 us at 465-466 n. 24, 91 

set at 2037-2038 n. 24 

34. as. vsegura _us,_ 104 set 3380, 3388-3390 (i984) 

- 148 - 



35. as. vAllard, 634 F2d 1182, 1186-1187 (9th Cir. 1980) 

36. as. VLomas, 706 F2d 886, 894, 896-897 (9th Cir. 1983) 

37. Miller V as., 357 US 301, 307, 78 SCt 1190, 1194 (1958) 

38. Title 18 U.S.C. Section 3109 

39. as. VKane, 637 F2d 974, 977-978 (3d Cir. 1981) 

40. Miller V U.S., 357 US at 310, 78 SCt at 1196 

41. Sabbath VU.S., 391 us 585, 590, 88 SCt 1755, 1758 (1968) 

42. as V Nolan, 718 F2d 589, 599 (3d Cir. 1983) 

43. as. V Cruz, 265 FSupp 15, 23-24 (W.D. Tex. 1967) 

44. as V Watson, 423 us 411, 423, 96 SCt 820, 827-828 
(1976) 

45. U.S. vSantana, 427 US 38, 42-43, 96 SCt 2406, 2409-2410 
(1976) 

46. People vLevan, N.Y., Sup. Ct, App. Div., 1st Dept, 2/10/ 

83 

47. Washington v Chrisman, 455 US i, 9, 102 SCt 812, 817- 

818(1982) 

48. Chlmel V California, 395 US 752, 766, 89 set 2034, 2041- 
2042 (1969) 

49. Illinois V Lafayette 462 US_, 103 set 2605, 2609 (1983) 

50. U.S V Lyons, 706 F2d 321, 333 (U.S. App. D.C. 1983) 

51. Youngman, Henny, Caesar's Palace, Las Vegas, Nevada 

(1983) 

52. us V Kramer 711 F2d 789, 792-794 (7th Cir. 1983) 

53. Smith V Maryland, 442 US 735, 742-744, 99 SCt 2577, 
2581-2582(1979) 

54. U.S VKnottS, 460 US 276, 103 SCt at 1086-1087 



- 149 



Chapter 11 



BEL0N6IN6S 




151 - 



"The great end for which men entered into 
society was to secure their property. That right 
is preserved sacred and incommunicable in all 
Instances where it has not been taken away or 
abridged by some public law for the good of the 
whole... every invasion of private property, be 
it ever so minute, Is a trespass." 

Lord Camden, Entick v Carrington and Three 
other King's Messengers, 19 How. St. Tr. 1029 

(1765) 



Now that we know what to expect from the law con- 
cerning the privacy of our "persons" and our "houses," 
let's conclude our survey of the Fourth Amendment by 
discussing Its protection of our "papers and effects." In 
the last chapter it was disclosed that a person can have 
no expectation of privacy in his garbage,^ but there are 
also other personal property contexts where one's 
privacy interest melts away. 

When the cops have previously discovered contraband 
inside an item, and secretly follow it to Its destination, 
they're conducting what's called a "controlled delivery." 
If they can catch the owner with the incriminating Item 
shortly thereafter, they're entitled to freely open It, 
"discover" the contraband inside, and bust him for 
possession; their prior knowledge of the item's contents 
neutralizes the owner's legitimate expectation of 
privacy In it.^ 

While possession may be nine tenths of the law, that 
remaining tenth must represent the privacy Interest, be- 
cause a person who's In possession of another's property, 
but not delegated the full use and control of It, has no 
constitutional right to object to Its being searched. 
Consider, for instance, a man who's standing guard over 
a truck full of weed but has neither the title nor the ig- 



- 153 - 



nitlon key to it. Although he's been entrusted with the 
duty to Iceep undesirables away from it, the law says 
that his lack of either ownership or exclusive control of 
it leaves him without standing to object to an illegal 
search and seizure. Thus, the court can find him guilty of 
possession, but not entitled to the protection of the 
Fourth Amendment.^ 

Ownership of a thing doesn't always guarantee a pri- 
vacy interest in it, either. The person who places his pro- 
perty in someone else's house or car does so at the risk 
of its being seized in a police search and used as evidence 
against him, because he has no standing to object to 
searches of someone else's premises. V^ This is also true 
for those papers of a person which are held by third 
parties such as his banker,^ accountant,^ or lawyer.^ 
Similarly, a person forfeits his privacy interest when he 
loans out his car,^ airplane,^° or other such vehicle to 
other people; if they get busted carrying dope in it, the 
absent owner has no standing to object to the search of 
the vehicle, and will in all probability lose it in forfeiture 
to the government. 

It would appear, then, that before a person can assert 
a right to privacy for a vehicle, he should be (1) in 
complete control of it (or preferably, the legal owner), (2) 
physically present at the time of the search, and (3) take 
reasonable measures to protect his avowed privacy 
interest. An interesting case in point was that of a fellow 
named Perez, who contracted with a Mexican national 
to drive a load of heroin into the U.S. Perez stashed the 
stuff in the gas tank, and paid for the services of the 
driver and his truck through another Mexican. Then, he 
and two other associates tailed the truck to its destin- 
ation in central Arizona. Unbeknown to them, the entire 
Odyssey had been under constant air and land surveil- 
lance by the cops, who finally got impatient and con- 
ducted a warrantless search and seizure without prob- 
able cause. The interesting thing about the case is that 
the federal Court of Appeals ruled in favor of Perez - 
since he (1) had a "formalized arrangement" with the 



154 



Mexican to be his "mule," (2) took precautions to assure 
privacy by following beliind, and (3) was himself present 
at the time of the search, Perez was entitled to a 
legitimate expectation of privacy in the truckl^^ 

There are various circumstances under which the cops 
may intrude upon a citizen's personal property without 
even demonstrating reasonable suspicion, in public 
places, for example, people's luggage might be subjected 
to sniffing by drug detection dogs," and baggage 
handlers are even justified In helping them to get a good 
smell by compressing the bags and forcing air out, a 
process known as "prepping."" In the public school 
setting, wall lockers and publically-parked cars may be 
subject to such dog sniffs.^ V" Since the dogs are merely 
tasting the air around the outside of the object, there's 
some question as to whether the dog sniff really even 
constitutes a "search" in the constitutional sense." The 
Indiscriminate use of sniff dogs to check out people's 
property in public places hasn't been authorized by the 
federal courts in all parts of the country ,^6 but with the 
"conservative" trend in government these days it's 
probably safe to assume that it soon will be. 

When a bag has unquestionably been abandoned, the 
police are free to search inside it and use its contents as 
evidence against whomever the finger may point." 
They're also free to go snooping if they have the consent 
of the joint user of an article;^^ consent of the owner 
himself might be automatic if it happens to be a condi- 
tion of his parole agreement.^^ 

The discretion to freely search personal property is en- 
joyed with especially wide latitude by the various types 
of federal cops that are concerned with the national 
borders. Any kind of property that enters the country 
from abroad, be it a letter or an ocean liner, is subject to 
as thorough a search as the feds may wish to conduct; 
no further justification is needed beyond the fact that 
it is entering national territory.^o This wide degree of 
discretion, however, is confined to affairs at the border. 



- 155 



or at its "functional equivalents" such as airports where 
people first disembark upon entering the U.S. 

On major highways leading in from the national front- 
iers, the U.S. Border Patrol operates fixed checkpoints, 
some of them located more than fifty miles inland. Their 
main purpose is to detect illegal aliens, and they're 
entitled to stop motorists, check for proof of citizenship, 
ask questions, and peek Inside the cars.^^ There's no need 
for them to have any Individualized suspicion in order to 
make these brief checks," but unless they pick up 
suspicious signals during the process they aren't entitled 
to do any real search of a vehicle. The scope of these 
routine inspections is supposed to be limited to only 
checking for people?^ 

Since water travel is impossible for them to control by 
means of fixed checkpoints or "functional border equiv- 
alents," the seagoing feds have authorization to freely 
conduct roving searches of any vessels within twelve 
miles of American shoreline. As with the border searches 
and the alien searches at fixed checkpoints removed 
from the border, they don't need to have any partic- 
ularized suspicion in order to board a vessel and search 

it.24/25 

If the cops do have reasonable articulable suspicion 
that a crime has been committed, they're entitled to do 
a "protective" search of the suspect's belongings In the 
same way that they frisk his person. 

A closed container, such as a purse, a suitcase, or even 
an envelope, carries the inherent Implication of privacy 
by virtue of the fact that It /s closed from view. Such an 
expectation of privacy is one that's recognized by 
society, and a cop's decision to violate it on the basis of 
mere suspicion should be justified by weighing the 
sufficiency of three criteria-. (1) the public necessity of it, 
(2) the efficacy of such a search, and (3) the degree of 
intrusion involved In the proposed search.^ if there isn't 
a compelling enough public interest in making such a 
search, the first criterion Isn't met; the danger posed by 

- 156 - 



a concealed weapon would usually be sufficient in this 
regard, whereas the prospect of turning up a few joints 
probably wouldn't, if the proposed search doesn't offer 
the promise of effectively fulfilling that public interest, 
it fails to meet the second criterion. As much as the cops 
would love to stalk around at rock concerts searching 
purses for liquor and drugs, the hopelessness of stem- 
ming the "drug menace" through such a measure renders 
It unreasonable under this second criterion. If the search 
involves a more drastic intrusion than would seem 
reasonable under the circumstances, it fails to satisfy 
the third criterion. 

Grounds for the reasonable suspicion necessary to 
search a person's things might come from anywhere - 
even an anonymous phone tip." The scope of the conse- 
quent search, however, should be limited by the nature 
of its purpose; on a "protective" search for weapons, for 
example. It wouldn't be reasonable for the police to 
inspect the contents of an envelope.28 

Short of actually searching Inside a closed container, 
the cops can legitimately detain it for a time while they 
attempt to either satisfy their suspicion through some 
nonlntrusive means or obtain a judicial search warrant, 
it's noteworthy that the law enforcement interest in a 
detention of property focuses more on detecting con- 
traband than It does on protecting the officer from the 
threat of a hidden weapon, which was originally the 
justification for intrusions based on reasonable articul- 
able suspiclon.29 Such a detention Is a temporary depriv- 
ation of the owner's property Interest, and is therefore 
considered an intrusion in the constitutional sense. The 
Supreme Court has held that such investigative deten- 
tions are only reasonable when the cops make It quick 
and use the least Intrusive methods available to Investi- 
gate the Item within a i&r/ef period of tlme.'° 

As an intrusion, the detention of personalty consists of 
two phases — the seizure and the investigation. Seizure 
of the article from a third party, to whom the owner 



157 



voluntarily relinquished custody of it, represents an 
intrusion of a milder nature than seizure from the owner 
himself.51 Examples of such third parties include 
transportation personnel and postal employees. The 
extent of the seizure, as measured in units of time, can 
vary from brief, permissible detention to those lasting 
over ninety minutes, which suggest a failure of the cops 
to act diligently, and are therefore impermissible." 
Similarly, the nature and extent of the investigation to 
which they subject the item - fluoroscopy, dog sniff, or 
some other limited technique - is also pertinent. Thus, 
if the cops have reason to suspect that a citizen's 
personalty contains something illegal, they can seize it 
and hold onto it for whatever brief period of time it 
takes them to satisfy themselves by a limited investi- 
gation.^1 Part and parcel to the reasonableness of these 
property detentions is the condition that the owner be 
free to leave if he chooses." 

Vehicles, too, may be subject to cursory searches based 
upon reasonable articulable suspicion, but it has to be 
particularized suspicion directed at specific cars,- area- 
sweep tactics that picl< out cars at random are not con- 
sidered reasonable." Just as with other forms of per- 
sonal property, the cops can get their suspicion either 
directly by their own observations"/" or indirectly 
through information from a snitch-'V" When a vehicle Is 
in the vicinity of one of the national borders, the feds 
have a right to stop and search it at any time and place 
if they become reasonably suspicious.^^ in addition to 
things iilce erratic or evasive driving, which would give 
any cop reasonable suspicion, the Border Patrol will pick 
up on such factors as known recent illegal border 
crossings, proximity to the border, and the unusual 
pattern of traffic on a particular road. They'll be suspi- 
cious of cars that appear to be heavily loaded, and 
certain types of vehicles, such as trucks, vans, and 
station wagons with large hidden compartments suit- 
able for hiding aliens. The nature of the passengers is also 
likely to arouse their suspicion; an extraordinary number 



158 



of them, the appearance of someone attempting to 
hide, or the characteristic modes of dress and haircuts 
that iViexican nationals wear, are ail adequate grounds 
for stopping and searching the car.'^ 

State and local police may also conduct roving vehicle 
checks without probable cause, but their administrative 
concerns are unlil<ely to result in actual searches. Their 
interest in enforcing traffic laws will be reflected by a 
concern with licenses, registrations, truck weights, and 
the like.«o if a person's driving is satisfactory, his vehicle 
is in proper mechanical condition, his papers are in order, 
and there's no obvious cause for suspicion (such as the 
odor of alcohol or marijuana, or evidence of a crime lying 
in plain view) there's no justification for them to search 
his car. 

The intensity of a vehicle search based on reasonable 
suspicion is supposed to be less aggressive than would be 
justified by probable cause, although the distinction is 
likely to be meaningless if the evidence isn't carefully 
hidden, it may be reasonable to search a closed container 
inside the passenger compartment if the circumstances 
suggest a danger that calls for a "protective" search.*^ 
Unless some compelling exigency exists, such as the 
threat of an explosion in public, it wouldn't be reason- 
able to enter the locked trunk without probable cause.*^ 
State courts have reasoned similarly in declaring that a 
policeman may not enter under the hood or the locked 
interior of a citizen's car without probable cause.*'/"* It 
seems contradictory to the popular tone of the law, 
then, that the Supreme Court should approve as it does 
of the secret attachment of automobile tracking devices 
— a significant intrusion — on the basis of mere 
suspicion.^ 

With probable cause, the police can legitimately 
conduct an extensive array of search and seizure activ- 
ity on people's effects. The use of a judicial search 
warrant enables them to carry it out with the official 
blessing of the court, although it limits the search and 



- 159 



seizure to just those things which are specified, or 
"particularized/'in the warrant. With an eye to prevent- 
ing the l<ind of general search that the British military 
used to conduct during colonial times, the Supreme 
Court has declared that nothing should be left to the 
discretion of the officer executing the warrant.^V^ 
Particularity requirements don't prevent the cops from 
seizing unexpected contraband which turns up "in plain 
view" during a warranted search, but it does prevent 
them from searching where the warrant doesn't specify. 
A warrant to search a specific address will therefore not 
provide for a search of the owner's car if it's parked 
away from the premises.^^ 

in two major respects, the automobile is unique as an 
item of personality: (1) it's likely to be evasive of police 
efforts to detain it, and (2) it has a diminished expect- 
ation of privacy. On the first score, the Supreme Court 
long ago established the concept of an "automobile 
exception" to the warrant requirement.^^ The reasoning 
is that, when the cops stop a car on probable cause, if 
they leave it long enough to get a search warrant it 
might not be there when they get back. On the other 
hand, if they take it with them, they're depriving the 
owner of his transportation. The less intrusive option, 
the Court reasoned, is to allow the cops to search 
vehicles on the spot when they have probable cause to 
do so. That way, if they score a bust, they can arrest the 
occupant and impound the can if they come up dry, they 
can simply let him be on his way. The same reasoning, 
incidentally, applies to wagons, boats, and other mobile 
conveyances.^^ 

Regarding the second aspect, there seem to be five 
reasons for the lowered expectation of privacy in a 
vehicle: (1) it seldom serves as a residence, (2) it seldom 
serves as a repository for personal effects, (3) it travels 
in plain view on public thoroughfares, (4) it requires 
extensive state licensing and registration, and (5) it's 
often inspected and taken into custody for public 
safety.50 The courts are quick to fall back on this reason- 



160 



ing in order to justify warrantless auto searches. There's 
a smaller expectation of privacy attached to an auto- 
mobile than to luggage,5o and it's far smaller than that 
which one enjoys for his perison or his house.'^ Even when 
the vehicle functions incidentally as a dwelling (e.g. a 
sleeper van) it's accorded a low rating on the privacy 
scale.52 jup expectation of privacy for an airplane is 
probably about the same as for an automobile.^^ 

The prime rationale for warrantless automobile 
searches has traditionally been the element of exigency 
- either the fear that someone would drive the car 
away^V^" or the danger posed by the object of the 
search itself, such as a gun.55 The lacl< of exigency has in 
the past led the High Court to reject the application of 
the automobile exception.se but recent holdings have 
given the police complete discretion in this regard. It's 
now okay for them to conduct a warrantless search of 
any part of a vehicle, including any closed containers 
inside it, as long as they have probable cause to search 
in those particular places.^^ Moreover, they can wait until 
later to perform their warrantless searches in the 
convenience of the police compound if they choose, 
because the probable cause remains just as valid there as 
it is on the scene.ss/'^ Those feds that run the fixed inland 
checkpoints and inland roving patrols are authorized to 
search vehicles only upon probable cause.«'/«i For them, 
however, probable cause is likely to consist of much the 
same criteria as those mentioned above for reasonable 
suspicion (i.e. appearances, responses, nature of the 
vehicle, etc.).«° 

Concomitant with a lawful arrest (which is itself 
necessarily based upon probable cause) the police are 
entitled to conduct a search and seizure of any personal 
property in the immediate grabbable area of the arres- 
teef^ that includes closed containers,"/^' papers,«^ and 
vehicles," even the more private ones that serve as 
homes." The lowered expectation of privacy attached 
to the interior of an automobile is diminished even 
further by the occupant's arrest, but it's important to 



- 161 - 



note that this rationale itself has limits - the "bright 
line rule of Belton" defines them. The Supreme Court 
authored this rule in order to make it simple for a cop to 
decide how far he can extend a search incident to lawful 
arrest. Basically, it says that such searches may include 
the entire passenger compartment of a vehicle, including 
any closed containers inside it, but not the trunk-^s The 
glove compartment is considered a "closed container," 
and the implication is that it's searchable even if 
locked.65/«^ Note that this rule is unconcerned with the 
concept of probable cause, and is purely related to the 
search of the grabbable area inside tJne car of an arrested 
person.65 Thus, it recently happened that the police 
stopped a car in order to arrest the driver, and one of 
the passengers promptly alighted with his briefcase and 
walked away. Although the cops immediately hailed him 
back and exposed evidence of drug trafficking in his 
briefcase, the federal appeals court ruled that the search 
of the bag was unconstitutional under the Belton rule; 
the man had not been arrested, and his bag was not in- 
side the car when they arrested the others, so the search 
was invalid^ 

It should be emphasized that the search incident to 
lawful arrest is an affirmative rigtit of the police when- 
ever they make an arrest, irrespective of the nature or 
locations of the items; they're entitled to go through 
everything that's conceivably within reach.^s it doesn't 
even matter that the arrestee may be completely 
unable to reach things within the "grabbable" area; even 
when the cops themselves are holding the items,6V'° or 
the arrestee is hog-tied, overpowered, and hopelessly 
separated from them,7V^2 they're still considered to be 
searchable simply because they are within the grabbable 
area. The nature of the crime which prompts the arrest 
is also irrelevant; an arrest for using a revoked driver's 
license entitles them to conduct the same search as one 
for murder.68 

A search incident to lawful arrest must necessarily be 
conducted at the same time and place as the arrest or 



- 162 - 



it isn't truly "incident" to it. The cops can't use this 
excuse to justify the search of a container or vehicle 
which takes place sometime later.^V'* 

Just as the authority of a lawful arrest gives cops the 
right to search nearby personalty for weapons and 
evidence, so does the responsibility of custody give them 
the right to search any personalty which they hold in 
storage. This type of intrusion is called an "inventory 
search," and it represents a very real threat to privacy 
because there are numerous fortuities by which a 
person's property can fall into police hands. 

Any time a person is arrested away from his home he's 
likely to have effects, and often a vehicle, in his pos- 
session at the time. Upon his being booked in at the 
police station, all these things are inventoried - that is, 
they are individually examined and described on a list. 
This is an administrative step which is designed to fulfil 
several functions: (1) it gives the cops an opportunity to 
rummage through their prisoner's things in the privacy 
and convenience of the station house rather than in 
view of the public; (2) it protects the owner's property 
interests by providing an accounting of each item en- 
trusted to police custody,- (3) it deters disgruntled 
citizens from making false claims against the police for 
theft of their property,- (4) it gives the cops a measure 
of control against the introduction of weapons, drugs, 
and other security threats into the jailhouse or auto 
compound; (5) it aids the cops in establishing an ar- 
restee's identity; and (6) in the case of an abandoned 
vehicle, it gives them an opportunity to ascertain if it's 
been stolen.^/^e 

Automobiles are frequently impounded by the cops, 
often for unforeseeable reasons. The arrest of a car's 
occupant^^ or its use in the commission of a crime 
(whereby it comes to be referred to as an "instrument 
of crime")78 are both justifications for the seizure of a 
vehicle. When a car is involved in a traffic accident which 
calls for the preservation of evidence, or when an aban- 



163 - 



doned, disabled, or illegally parked vehicle obstructs the 
flow of traffic in some way and isn't attended by a 
qualified driver who can remove it, impoundment can 
occur7V^9 

During the course of an inventory search, closed con- 
tainers may be opened in order to make an accurate 
accounting of their contents.^s The passenger section of 
a vehicle^e and the back part of a camper^^ may be en- 
tered whether locked or not, and any unlocked compart- 
ments (such as the glove compartment and trunk) may 
be searched-'^ There's still a degree of controversy over 
whether it's reasonable to searched a locked compart- 
ment. The Tenth Federal Circuit, which covers the states 
of Colorado, Kansas, New Mexico, Oklahoma, Utah, and 
Wyoming, holds that the police may indeed go into a 
locked trunk during an inventory search;^^ the Eighth 
Circuit, which consists of Arkansas, Iowa, Minnesota, 
Missouri, Nebraska, and the Dakotas, holds that they may 
not.80 A consideration which might influence this decision 
is whether damage must be done in order to open a 
locked compartment; if so, then it's likely to be an 
impermissible intrusion for the police to make.^^ 

The obvious danger from these inventory searches is 
that, in the course of their "caretaking functions," the 
cops will discover evidence that can be used against the 
owner. Even though it may have been carefully hidden, 
it will fall into "plain view" once the cops do their in- 
ventory search.78 All altruistic rhetoric aside, their real 
interest in doing inventory searches is to ferret out evi- 
dence, not only for the principal crime being charged, 
but for unrelated ones as well, it's a free chance for the 
cops to go fishing in what would otherwise be protected 
waters, and often results in new criminal charges being 
brought.sv^' 

There are a couple of exceptions to property which 
must be subjected to an inventory search. It was men- 
tioned in the last chapter that a person's belongings in 
his hotel room are not subject to police Impoundment 



164 



upon his arrest. The hotel room is considered his "house" 
even if the cops themselves paid the bill, and the things 
in a person's house cannot be subjected to search and 
seizure except by warrant or one of the established 
exceptions to the warrant requirement. If they aren't 
impounded, the citizen's things can't be subjected to an 
inventory search.** Another exception is one which may 
be provided by state law, whereby a person who's taken 
into temporary protective custody does not have his 
effects searched. Alaska has such a law, and when the 
cops there pick up a drunk and put him in the cooler to 
"sleep It off" he isn't subjected to the usual Inventory 
search. Where there is no specific law to that effect, 
however, such detainees who are not under formal 
arrest will have their property searched like anybody 
else.85 

"Papers" is a term which is mentioned in the Fourth 
Amendment as a form of personalty deserving of its 
protection against unreasonable search and seizure, and 
it's generally considered to Include letters, documents, 
checks, records, books, and the like. Because they are 
physical items, they're considered on one hand as "goods 
and chattels."86 They differ from other types of pro- 
perty, however, in that their essence as tools of com- 
munication allows for their use as testimonial evidence 
against the owner. The Fifth Amendment, which will be 
discussed more thoroughly In the following chapter, says 
that no one should be forced to testify against himself. 
When a person writes his private thoughts down he risks 
this very danger, because the cops, who care very little 
for notions of fair play, will seize such papers and use his 
own written words to convict him. One's papers, there- 
fore, have the distinction of being dually protected 
under the Fourth and Fifth Amendments. This privacy 
aspect as to the contents of papers Is exemplified by the 
federal court holding that, once the government has 
finished an investigation of a person, it must return to 
him not only the originals of any papers that were 
seized, but all copies that were made as well.^' 



165 - 



Papers can be taken from a person in two ways: the 
court can order him to voluntarily submit them himself, 
a process called "subpoena," or the cops can go out and 
seize them like any other article. Authority for the 
seizure of records can stem from prior agreement, such 
as that which a person makes when he accepts a govern- 
ment contract,^ or it can be based upon a judicial search 
warrant^s or one of the established exceptions to the 
warrant requirement, such as the incident-to-lawful- 
arrest exception-^" The Supreme Court has held that less 
stringent particularity is acceptable in the warranted 
record searches of white-collar crime investigations, 
since they tend to be complicated.9° Like other property, 
however, papers are protected from search and seizure 
which doesn't conform to at least a vestige of 
constitutionality.^^ 

if, during the course of investigating a person, the cops 
want some relevant papers which are in the hands of a 
third party such as his banker, accountant, or lawyer, 
they can use the subpoena to get them.VV^ In order for 
them to use the subpoena to compel the suspect himself 
to give up his papers, however, the records sought must 
be ones which are required by law to be kept. Various 
occupations are required by statute to keep certain 
business records, and since there's no legitimate expec- 
tation of privacy for these, a person can be compelled to 
surrender them upon subpoena.^^ other papers — the 
ones that are supposed to be "private" - must be seized 
if the cops want them. A person's Fifth Amendment 
privilege only relieves him of having to produce his 
papers,- most of the constitutional protection of them 
comes from the Fourth Amendment, and that doesn't 
always prevent their production by someone else.^^ 

If the police can't legally do their own seizure, a civilian 
who has access to the evidence can sometimes be used 
to unofficially make the snatch for them; evidence that 
a c/V///aA7 turns up for the police is always usable, regard- 
less of whether he may have violated somebody's 
constitutional rights to get it.^' This is something which 



166 



must be anticipated and guarded against for all types of 
belongings — papers in your desk, packages you have 
shipped, things you put Into storage — some meddle- 
some clerk or handler can break in, dig around, and 
ultimately expose your private affairs to the police, and 
there's no constitutional protection from the use of 
such evidence against you. 



REFERENCES 

1. U.S. V Kramer, 711 F2d 789, 792 (7th CIr. 1983) 

2. Illinois V Andreas, 463 US _, 103 SCt 3319, 3323 (1983) 

3. U.S. V Torres, 705 F2d 1287, 1292 (11th Cir. 1983) 

4. Rakas V Illinois, 439 us 128, 148-149, 99 SCt 421, 433 
(1978) 

5. as. V SalVUCCi, 448 US 83, 91-92, 100 SCt 2547, 2552- 
2553(1980) 

6. US V Miller, 425 US 435, 444, 96 SCt 1619, 1624 (1976) 

7. Couch V U.S., 409 US 322, 333-335, 93 SCt 611, 618-619 
(1973) 

8. Fisher V U.S., 425 US 391, 403, 96 SCt 1569, 1577 (1976) 

9. US V One 1977 Mercedes Benz, 708 F2d 444, 449 (9th 
Cir. 1983) 

10. US VDyar, 574 F2d 1385, 1390 (5th Cir. 1978) 

11. US V Perez, 689 F2d 1336, 1338 (9th CIr. 1982) 

12. as. V Goldstein, 635 F2d 356, 361 (5th CIr. 1981) 

13. as V Viera, 644 F2d 509, 510-511 (5th CIr. 1981) 

1 4. Norton V Goose Creek independent School District, 690 

F2d 470, 477, 488 (5th Cir. 1982) 

15. zamora v Pomeroy, 639 F2d 662, 663-664 (lOth Cir. 
1981) 

16. as vBeale 674 F2d 1327, 1335-1336 (9th CIr. 1982) 



167 



17. as. 1/ Tolbert, 692 F2C1 1041, 1045 (6th Cir. 1982) 

1 8. Frazler V Cupp, 394 US 731 , 740, 89 set 1 420, 1 425 (1 969) 

1 9. Owens V Kelley, 681 F2cl 1 362, 1 366-1 368 (1 1 th Cir. 1 982) 

20. as. V Ramsey, 431 us 606, 616, 97 set 1972, 1978-1979 
(1977) 

21. as. V Martinez-Fuerte, 428 US 543, 558, 96 set 3074, 
3083(1976) 

22. Id., 428 US at 562, 96 Set at 3085 

23. Id., 428 US at 566-567, 96 Set at 3087 

24. as V Villamonte-Marquez, 462 US _, 103 set 2573, 

2582(1983) 

25. as. V Hidalgo-CatO, 703 F2Cl 1267, 1272-1273 (11th Or. 
1983) 

26. Comer V Miller, 414 FSupp 1357, 1361-1364 (S.D. Tex. 
1976) 

27. as. V Mason, D.e. et. App., 9/9/82 

28. as V Thompson, 597 F2Cl 187, 191 (9th eir. 1979) 

29. as. V Place, 462 us _, 103 set 2637, 2642-2643 (1983) 

30. as. vRoyer, 460 us _, 103 set 1319, 1325 

31. Id., 103 set at 2643-2644 

32. /flf., 103 set at 2645-2646 

33. as. 1/ Walraff, 705 F2cl 980, 990 (8th eir. 1983) 

34. as VBest, 563 FSupp 1075, 1080 (D.D.C 1983) 

35. Michigan VLong, 463 US _, 103 set 3469, 3473 (1983) 

36. People V Lewis, 659 P2d 676, 678 (COlO. 1983) 

37. Adams V Williams, 407 us 143, 144-145, 92 set 1921, 

1922(1972) 

38. State vHolbrook, 33 Wash. App. 692, 657 P2cl 797, 798 
(Wash. App. 1983) 

39. as. V Brlgnonl-Ponce, 422 US 876, 884-885, 95 set 2574, 
2582(1975) 

40. Id, 422 US at 883 n. 8, 95 Set at 2581 n. 8 

- 168 - 



41. State vLuxem, S.D. Sup. Ct., 9/8/82 

42. People V Clements, 661 P2d 267, 272 (Colo. 1983) 

43. state V Moore, 659 P2d 70, 72 (Hawaii 1983) 

44. state V Simpson, 95 wash.2(J 170, 622 P2(J 1 199, 1210 
(1980) 

45. U.S. vKnottS, 460 US 276, 103 SCt 1081, 1086 (1983) 

46. Marron V U.S., 275 US 192, 196, 48 SCt 74, 76 (1927) 

47. LO-Jllnc. VNew York, 442 US 319. 325-326. 99 SCt 2319. 
2324(1979) 

48. Landers v state, Georgia Sup. Ct., 4/5/83 

49. US V Carroll, 267 US 132, 153, 45 SCt 280, 285 (1925) 

50. as. V ChadWlCk, 433 US 1, 12-13, 97 SCt 2476, 2484 
(1977) 

51. Almeida-Sanchez V U.S., 413 US 266, 279, 93 SCt 2535, 
2542(1973) 

52. People V Chestnut, Cal. Ct. App., 3d Dist., 1/20/83 

53. US vNigro, 727 F2d 100, 106-107 (6th Cir. 1984) 

54. Cardwell V Lewis, 417 US 583, 594-595, 94 SCt 2464, 2471 
(1974) 

55. Cady vDombroWSki, 413 US 433, 447, 93 SCt 2523, 2531 
(1973) 

56. Coolidge v New Hampshire 403 US 450, 461-462, 91 SCt 
2022,2035-2036(1971) 

57. as. VROSS, 456 US 798, 102 SCt 2157, 2172 (1982) 

58. Chambers 1/ Maroney, 399 US 37, 51-52, 90 SCt 1975, 
1981 (1970) 

59. Texas V White 423 US 67, 68, 96 SCt 304, 305 (1975) 

60. as V Ortiz, 422 US 891, 896-897, 95 SCt 2585. 2589 
(1975) 

61. Almeida-Sanchez v U.S., 413 US at 273. 93 set at 2539- 

2540 



169 - 



62. Chimel v California, 395 US 752, 766. 89 SCt 2034, 2041- 
2042(1969) 

63. as. V Robinson, 414 us 21 8, 236, 94 SCt 467, 477 (1973) 

64. n^arron V U.S., 275 US at 199, 48 SCt at 77 

65. New Yoric V Beiton, 453 US 454, 460-461, 101 SCt 2860, 
2864(1981) 

66. Id., 453 US at 472, 101 SCt at 2870, J. White dissenting 

67. U.S V Vaughan, 718 F2d 332, 334 (9th Cir. 1983) 

68. U.S V Robinson, 414 US at 234-235, 94 SCt at 476 

69. Savole V state, Fla. Sup. Ct, 11/10/82 

70. U.S VKaye, 492 F2d 744, 746 (6th Cir. 1974) 

71. People-v-Levan, N.Y. Sup. Ct, App. Div., 1st Dept., 2/10/ 
83 

72. state V Caraher, 293 Or. 741, 653 P2d 942, 943, 952 (Or. 
1982) 

73. as V Monclavo-Cruz, 662 F2d 1285, 1290 (9th Cir. 1981) 

74. Preston V as., 376 US 364, 367-368, 84 SCt 881, 883 
(1964) 

75. Illinois V Lafayette, 462 US _, 103 SCt 2605, 2609-2610 
(1983) 

76. South Dakota v opperman, 428 us 364, 368-369, 96 SCt 
3092,3097(1976) 

77. U.S V Martin, 566 F2d 1143, 1145 (10th Cir. 1977) 

78. Harris V as., 390 US 234, 235, 88 SCt 992, 993 (1968) 

79. as VMaier 691 F2d 421, 424-425 (8th Cir. 1982) 

80. as V Wilson, 636 F2d 1163, 1165 (8th Cir. 1980) 

81. State vCabage, Tenn. Sup. Ct, 3/21/83 

82. US V Jenkins, 496 F2d 56, 73-74 (2d Cir. 1974) 

83. People V Richards, III. Sup. Ct, 1/24/83 

84. US. V Lyons, 706 F2d 321, 333-334 (U.S. App. D.C. 1983) 

85. US V Gallop, 606 F2d 836, 839-840 (9th Cir. 1979) 



170 



86. Boyd V U.S., 116 us 616, 6 SCt 524, 531 (1886) 

87. Sovereign News Co. v U.S., 690 F2cl 569, 577-578 (6th Cir. 
1982) 

88. zap V US., 328 us 624, 629, 66 SCt 1277, 1279-1280 
(1946) 

89. Andresen v Maryland, 427 US 463, 474, 96 SCt 2737, 
2745(1976) 

90. Id, 427 US at 480 n. 10, 96 SCt at 2748-2749 n. 10 

91. ManCUSi V DeForte, 392 US 364, 369, 88 SCt 2120, 2124 
(1968) 

92. Shapiro V U.S., 335 US 1, 34, 68 SCt 1375, 1393 (1948) 

93. US V JaCObsen, 466 US _, 104 set 1652 1656-1657 
(1984) 



171 



Part III 



THE FIFTH 



Chapter 12 

THE PRIVACY 

OF mms 




■ 175 - 



"No person... shall be compelled in any criminal 
case to be a witness against himself... " 

The United States Constitution, Amendment V 

(1787) 



in the foregoing chapters we've shown how the 
Fourth Amendment guarantees a measure of privacy for 
the physical aspects of our lives. There are, however, 
other avenues by which the government invades our pri- 
vacy - those of our thoughts and our words. Just as it 
can use physical evidence such as fingerprints and 
contraband, so can it use testimony as evidence to con- 
vict a person. "Testimony" consists of a person (the "wit- 
ness") telling the court ("testifying") what happened. It 
can be a pretty damaging type of evidence when the 
testimony suggests guilt, but it's virtually conclusive 
when the defendant himself provides it. 

For as long as the trial has been used to justify punish- 
ment, the confession has been a mainstay of the prosec- 
utor's "proof." The ruler can more easily maintain his 
credibility with the populace if he can get his victims to 
accuse themselves - that way he doesn't lool< so much 
lil<e an oppressor, it was thus that the flowering of a 
complete technology in confessionary inducements was 
seen in the Europe of Medieval and Renaissance times. As 
Justice Black has colorfully written, "the racl<, the 
thumbscrew, the wheel, solitary confinement, pro- 
tracted questioning and cross questioning and other 
ingenious forms of entrapment of the helpless or unpop- 



177 



ular had left their wake of mutilated bodies and shat- 
tered minds along the way to the cross, the guillotine, 
the stake and the hangman's noose. And they who have 
suffered most from secret and dictatorial proceedings 
have almost always been the poor, the ignorant, the 
numerically weak, the friendless, and the powerless."^ 

Coupled with its undeniable effectiveness as a way of 
getting things done, compelled confession has a major 
drawback in its lack of truthfulness. A skillful tormentor 
can make a person tell things he didn't even know, and 
that leaves much to be desired by the serious seeker of 
truth, ivioreover, it encourages the natural laziness of a 
class of individuals already impoverished in ambition and 
intelligence. As one cop admitted, "it is far pleasanter to 
sit comfortably in the shade rubbing red pepper into a 
poor devil's eyes than to go about in the sun hunting up 
evidence."^ 

The Founding Fathers didn't believe such policies to be 
a satisfactory substitute for justice, so they specifically 
declared in the Fifth Amendment that nobody should be 
forced to bear witness against himself. Their reasons for 
making this law underscore our most basic concepts of 
justice and may be summarized as follows:^ (1) it's unfair 
to make a person choose between contempt (refusal to 
answer), perjury (lying), and self-accusation; the court 
can punish him for any of the three choices, and none of 
them is both honorable and sensible according to tradi- 
tional values; (2) The accusatorial system of criminal 
justice is preferable to the inquisitorial system. The first 
way, a person is told exactly what it is that he's accused 
of, and he has a chance to prove his innocence. By the 
inquisitorial system, however, they probe into an unlim- 
ited range of issues and prosecute on whatever turns up. 
It provides no firm charge that a person can confront 
and defeat; (3) There's a fear, justified by the lessons of 
history, that cops will resort to inhumane methods in 
order to get incriminating statements from their sus- 
pects. The incentive for that sort of conduct is removed 
by prohibiting them from using such evidence; (4) Fair 



- 178 



play demands that, except for good cause, the big 
Frankenstein of government should leave the individual 
alone... and if it does become necessary to get on his case, 
the government should bear the burden of proving his 
guilt; (5) Every human being is morally entitled to have 
a unique personality guided by free will and self-interest, 
and it's considered unreasonable for any authority to 
force him to act in a self-destructive manner. Moreover, 
he needs and deserves at least a small measure of 
privacy for his thoughts in order to maintain order and 
stability of mind. Respect for the inviolability of the in- 
dividual's personality and critical sphere of privacy is at 
the very heart of Fifth Amendment philosophy; (6) 
There's a distrust in the truthfulness of self-deprecatory 
statements. Self-destruction is irrational, and suggests 
that extraordinary pressures may have been brought to 
bear upon such an individual. Truth is likely to be dis- 
regarded in the effort to escape pressures of this 
magnitude; and finally, (7) There's a realization that the 
privilege against self-incrimination protects the inno- 
cent as well as sheltering the guilty. It's worth losing 
many guilty convictions in order to pre v ent the travesty 
Of a s i ngle iTinocent one. ' " ' 

Forced confessions and any other statements that a 
person makes under duress are invalid as evidence 
against him in court, and at trial the defendant has a 
right to "take the Fifth" and "refuse to answer on the 
grounds that it may tend to incriminate" him. Compul- 
sory self-incrimination is therefore similar in some ways 
to evidence which has been acquired by illegal search and 
seizure. The latter, being a violation of the Fourth, is 
suppressive from court under the exclusionary rule; the 
former, being a violation of the Fifth, is suppressible 
under a privilege of silence. 

That the Fourth and Fifth Amendments are closely re- 
lated - indeed, even functionally intertwined - has 
been pointed out by the Supreme Court on numerous 
occasions. Their complementary functions can be viewed 
as a concerted effort to confer upon the individual 



179 



citizen a large area of privacy in his life, with room for 
personal conscience and human dignity-V^ it's been 
described as "the right to be let alone - the most 
comprehensive of rights and the most valued by civilized 
man."6 This relationship between the two amendments 
was, in fact, considered to represent a compelling con- 
stitutional basis for adopting the exclusionary rule as 
standard policy.^ 

It was briefly pointed out in the last chapter that one's 
personal papers are a type of property by which this 
close relationship between Fourth and Fifth Amend- 
ments can be illustrated. As physical items, they're sub- 
ject to the protection of the Fourth; as testimonial 
representations of one's thoughts, they're protected by 
the Fifth. To the extent that all unreasonable govern- 
mental intrusions upon a person's privacy are actually an 
endeavor to compel him to give up evidence against 
himself, the whole concept of search and seizure is really 
a Fifth Amendment issue.^/^ When the cops come poking 
around in a man's property, asking questions, and placing 
restrictions on his freedom, they're seeking to force him 
to give them some kind of evidence which they can use 
against him. Setting aside all the euphemistic rhetoric 
about "legitimate authority" and "societal interests," 
these intrusions are really nothing more than a form of 
coercion backed up by the artillery, the troops, and the 
organizational machinery they have at their disposal. 
Were it not for their military strength, the police would 
be far less successful than they are at prying incriminat- 
ing evidence out of the hands and mouths of their sus- 
pects. 

The privacy of one's statements is constitutionally 
guaranteed only to the extent that (1) it's recognized by 
society as legitimate, and (2) the speaker tries to keep it 
private.9 Broadly speaking, then, we can think of state- 
ments (both spoken and written) as falling into two 
categories: those which are privileged, and hence pro- 
tected under the Fifth Amendment, and those which are 
not. 



180 



Privileged statements may consist of (1) one's own 
spoi<en statements under certain circumstances, (2) 
certain papers within one's possession, and (3) certain 
third-party testimony. 

in the first category the most important group of 
statements includes those which are elicited through 
custodial interrogation without the suspect's waiver of 
his right to be silent or his right to counsel, if that sounds 
like a mouthful of legal double talk, don't feel alone; even 
the courts are confused about the fine points of that 
one. it'll become clear in the next chapter, which is 
devoted primarily to that subject, so it needs only a pass- 
ing mention for now. 

The other group of statements that the speaker has 
a right to expect won't be used as evidence against him 
consists of those which have been overheard by the 
police through illegal electronic surveillance. Federal law 
says that the cops can't bug or wiretap a private con- 
versation without either a warrant or the consent of 
one of the conversants.^° This means that (1) if they 
don't have a valid warrant for eavesdropping on a par- 
ticular conversation, and (2) if none of the people talking 
happens to be an undercover cop, the statements made 
during the conversation can't be used as criminal evi- 
dence against any of them. This is a statutory law, and 
unlike the state of affairs with a purely constitutional 
violation, a// the parties to an illegally monitored conver- 
sation are potentially eligible to challenge it in court. 
That they didn't own the place that was bugged, or 
weren't the ones being charged with a crime, doesn't 
preclude their right to challenge the evidence.^""/" 

in the category of privileged written statements, it's 
generally recognized that some element of a personal 
nature must attach. When they're one's own papers this 
condition is more easily met, but the distinction bet- 
ween "personal" and "official" is still made. Business 
records that a sole proprietor or practitioner keeps for 
his own exclusive use are usually considered personal 

- 181 - 



enough to qualify for privileged status. Non-business 
economic records, such as cancelled personal checks and 
tax records, are also privileged provided that they 
haven't been disclosed to other people. Once something 
has been shown around, it loses most of its expectation 
of privacy for legal purposes. Even though a personal 
letter is by nature given disclosure to at least one other 
person, the law still recognizes it as private if it has re- 
ceived only limited exposure. A personal diary is unques- 
tionably a privileged writing.^^ 

When someone is holding papers which don't belong to 
him, there's some possibility that these too might be 
privileged from disclosure,- he must show that he has 
them in a purely personal, non-official capacity.^* Re- 
member, however, that the "privileged" status of 
personal papers refers only to their immunity from 
subpoena,- as physical articles, even the most intimate of 
them can be entered into evidence if the cops can 
somehow independently get their hands on them (i.e. 
officially seizing them, having a third party sneak them 
out, eto.is 

The third category of privileged communications con- 
sists of that testimony which other people bear as a re- 
sult of their role in certain confidential relationships. The 
law generally considers the courts to be presumptively 
entitled to hear "every man's evidence,"^^ and shows no 
sympathy at all for an individual's preference not to 
testify against a friend. It's a major part of the grand 
scheme of government control over the masses; keep 
them in line by dividing loyalties so that every individual 
can be used as an informer against the next." There are, 
however, a few relationships that even the government 
is prepared to recognize as being so important that they 
shouldn't be threatened by the prospect of broken con- 
fidence. Provided that (1) a relationship is worthy of be- 
ing fostered by society, (2) it's dependent for its con- 
tinued existence upon confidentiality, (3) the nature of 
its communications is indeed confidential, and (4) dam- 
age to the relationship by a breach of confidence would 



182 



outweigh the societal benefits from it, the courts are 
prepared to recognize a privilege against requiring the 
parties to testify against each other.^s such privileged 
standing for third-party testimony isn't absolute; it's 
governed by previous court decisions, and doled out "in 
light of reason and experience."" If a court is convinced 
that societal interests are compelling enough, as in a case 
of child abuse, it might decline to recognize certain 
testimonial priviieges.^o on the other hand, courts can 
also create new, previously unrecognized ones if they 
see f it.2i 

The best known of these is the spousal privilege, 
whereby neither partner in a marriage can be forced to 
testify against the other, it's the currently active state 
of the marriage which mal<es the privilege valid, so it 
covers any testimony that a spouse is capable of giving, 
even that pertaining to events which took place prior to 
marrying. Being a privilege, however, it's only claimable 
by the spouse who's the potential witness; the other one 
doesn't have a standing to object if his (or her) partner 
decides to rat." 

Some courts have found the parent-child relationship 
to be at least as deserving of a privilege as the spousal 
one.25 There's no question that the healthiness of this re- 
lationship is fundamental to the very fabric of society. 
Nevertheless, there are some courts which will jail a child 
who refuses to testify against her parents.^" Such pro- 
ceedings bring to mind the well-known story of Pavlik 
iVlorozov, the youngster who became a Soviet national 
hero by snitching off his parents to Stalin's secret 
police." 

Another well-recognized context of privileged com- 
munications is the clergy-penitent relationship; what a 
person tells his priest in the confessional is supposed to 
remain strictly between himself and Le Bon Dieu.^/^e 

Similarly, if one's spiritual salubrity demands a privilege 
against disclosure of what he tells his priest, so does his 
mental well-being demand it for the disclosures he 



183 



makes to his analyst. Of all the different types of doctor- 
patient relationships, that with the psychotherapist Is 
the only one which carries a universally-recognized 
privilege of confidentiality"/^^ in order to merit the 
testimonial privilege, it should be a true doctor-patient 
relationship as judged by the standard conduct of exam- 
ination, diagnosis, treatment, and follow-up visits.^o 
Some courts have additionally recognized certain quasi- 
psychotherapeutic relationships as bearing a testimonial 
privilege. Examples of these include the relationships 
between a client (or student) and his marriage counselor, 
social worker, teacher, guidance counselor, or school 
psychologist." 

The attorney-client relationship is likely to produce 
plenty of information which the client expects to be 
kept secret. Indeed, due process of law demands that he 
be able to confidently disclose anything to his lawyer 
that may be pertinent to planning his legal defense. The 
belief that nothing between a client and his attorney 
can be divulged is a popular misconception, however. 
Those communications which are generally recognized 
as privileged Include (1) confidential disclosures, (2) the 
attorney's "work product," and (3) certain papers belong- 
ing to the client. 

Confidential disclosures which are made to a lawyer in 
order to obtain legal assistance are among the most 
sacred of all privileged communications, and are recog- 
nized as such by either statute or common law in all juris- 
dictions of the United States." without the public's 
reliance on this tenet, many people would be afraid to fill 
their lawyers in on important incriminating facts, and 
adequate legal defense would be impossible.^° 

"Work product" refers to any writings (e.g. work notes) 
which an attorney makes in the process of preparing his 
client's case. It reflects his thoughts on the case, as well 
as the results of his Interviews and investigations, and is 
accorded a privileged status, although not as Inviolate as 
that of the client's confidential disclosures.'^ 



- 184 - 



When a person turns over to his lawyer papers which 
are testimonial in nature (and therefore priviliged 
against being subpoenaed from his own hands), they 
carry with them that same privilege while they're in the 
custody of the lawyer. The courts can no more order the 
lawyer to hand them over than they could order the 
client to do so.'o 

Having thus outlined the different categories of pri- 
vileged communications, we might simplistlcally dismiss 
the subject of non-privileged communications as being 
"everything else." That would leave the story half- 
untold, however, because much of what's discussed be- 
low represents closely drawn exceptions to those 
categories of privileged statements we've just discussed. 
Moreover, there are many interpersonal relationships 
and situations of daily living which the average person 
is likely to assume are private, but which actually have 
no expectation of privacy at all. Since the whole object 
of this book is to point out these legal snares that the 
cops are so fond of setting, it would be negligent not to 
devote some detailed discussion to non-privileged 
statements. 

One's own spoken statements are nearly always de- 
void of any privilege; after all, people don't usually say 
things that they don't intend others to hear — and If 
they intend them to be heard, the statements are hardly 
"secret." The spontaneous volunteering of information is 
usually sufficient to guarantee that it can be used 
against the blabbermouth in court." it doesn't matter in 
the least that a person might intend for his statements 
to be kept in strictest confidence by a trusted friend, 
because it's a hard fact of life that one's best friend can 
turn out to be a snitching dog." Often, the cops will in- 
sinuate an undercover agent into a group for the pur- 
pose of trapping them into incriminating themselves. 
Statements which are gathered in this way are usable as 
evidence, regardless of whether the agent may be 
"wired" for electronic transmission of the conver- 
sation.'^ As was pointed out earlier, the federal antl- 



- 185 



bugging laws permit them to burglarize people's conver- 
sations as long as one of the conversants (the cop) has 
"given consent."i° in the Eleventh Circuit (Alabama, 
Florida and Georgia) the courts even permit police to 
freely plant listening devices in their suspects' rooms,- 
thus, they can send in an agent who isn't "wired" and still 
get the conversation on tape.55 The agent doesn't risk 
being caught wearing a wire, and the suspects aren't 
aware that they're "on the air" unless they do an 
electronic "sweep" of the room and discover the bug. in 
using such strategy the cops are relying upon their 
statutory right to bug conversations where one of their 
agents is a participant. The potential for them to acti- 
vate such warrantless bugs in the absence of their 
undercover agent raises strong Fourth Amendment 
questions, however (C.f. Chapter 9). it's for this reason 
that the First Circuit (Maine, Massachusetts, New Hamp- 
shire, Rhode island, and Puerto Rico) has ruled against 
such practices.'^ 

in places where a person has no legitimate expectation 
of privacy, such as a police squad car" or a prison visiting 
room,58 the courts have held that passive listening de- 
vices may be used, and the conversations which they 
happen to pick up are admissible as evidence. Where such 
bugging is conducted as a general security measure, 
rather than a surreptitious investigative technique, it's 
been considered justifiable. 

Papers which aren't personal In nature don't qualify 
for a privilege against subpoena. Business records which 
are required by law to be kept - sales invoices, etc. by 
which the government seeks to keep tabs on the flow of 
commerce — might even be said to have public aspects 
to them, and carry an implicit duty of disclosure." When 
one takes custody of an organization's papers in an offi- 
cial capacity, those too must be surrendered upon 
subpoena. A corporate officer, for example, can't expect 
to withhold his company's records from the police by 
taking them home with him,- even if they do implicate 
him personally In some crime, he holds them In an official 



186 - 



rather than a personal capacity, and must surrender 
them upon a court order.^* 

Third-party testimony, the backbone of courtroom 
evidence, is rarely privileged; the spousal, clerical, psycho- 
therapeutical, and attorney-client privileges are about 
the only ones which can be expected as a matter of 
course, and some aspects even of these aren't afforded 
the privilege. 

The psychotherapist, for example. Is not given a pri- 
vilege against testifying about a person with whom he 
had no true doctor-patient relationship. A brief visit to 
his office for a conversation about one of his patients, or 
to pick up a prescription for some Ludes, doesn't qualify 
as a bona fide psychotherapeutic relationship.20/40 
Pretrial evaluations of a suspect by state-appointed 
mental health professionals are likewise devoid of the 
privilege; their professional titles shouldn't belie the fact 
that they're acting as cops in the adversary process, not 
as doctors who have their patients' interests at heart.^^ 
There are some quasi-therapeutic aspects of counselling 
services which the courts are also unlikely to recognize 
a privilege for, such as that of draft counselor.25 

Of the attorney-client relationship, which the average 
person naively assumes to be a form of sanctuary, 
there's a surprisingly large range of communications 
which carry no privilege against disclosure. Non-con- 
fidential statements, for example, are subject to the 
same disclosure by a lawyer as they would be If made to 
anyone.^V*' Even confidential disclosures, which should 
by rights be inviolate, are subject to release under cer- 
tain circumstances.^^ The latest code of ethics adopted 
by the American Bar Association says that an attorney 
can snitch off his client concerning things which were 
told to him In confidence if it's necessary in order to pre- 
vent the client from committing a crime which might 
cause bodily harm to someone. Furthermore, if he needs 
to divulge a client's secrets In order to get himself off 
the hook, he can do that, too. Such unpleasant situations 

- 187 - 



as a legal controversy with a client, a client's allegations 
of professional misconduct by the lawyer, and civil or 
criminal action against the client which might suck the 
lawyer in as a codefendent, are all grounds for an at- 
torney to wiggle out of his obligation of confidentiality. 

Any papers that a lawyer holds for his client, which are 
impersonal enough to be subpoenaed from the client 
himself, can likewise be subpoenaed from the lawyer/^ 
So can the lawyer's "work product" papers if the court 
deems it necessary because it can't get the data from 
any other source.^^ 

The attorney-client relationship is not legally recog- 
nized when the "attorney" Isn't authorized to practice 
law. Lay people such as draft counselors and probation 
officers frequently counsel others in matters pertaining 
to the law, but there's no testimonial privilege attached 
to such relationshlps.25/^5 

The doctor-patient relationship has been listed here in- 
stead of with the privileged communications because 
(except for psychotherapists) doctors aren't universally 
invested with a testimonial privilege concerning their 
patients. Some state statutes do provide for it, but 
neither common law nor federal law recognizes the prl- 
vilege,28/^° and it's probably safer not to expect It. 
Patient flles,«° as well as the names of patients who 
attend particular types of cllnlcs,28/«6 have been subpoe- 
naed over the objections of the doctors In charge of 
them. 

Notwithstanding the courageous resolution displayed 
over the years by members of the press who went to jail 
rather than give up the Identity of their informants, a 
reporter-informant privilege is still not recognized by 
the courts.*^ Confidential business relationships, such as 
those between a client and his banker or accountant, are 
likewise unprotected by testimonial privilege-^V^ 

We've been speaking here about privacy expectations 
concerning the statements that people make, but 
there's another category of evidence that involves no 



188 



testimonial "statements" at ali, yet demands varying 
degrees of compliance which border on self-incrim- 
ination. This is the so-called "nontestimonial evidence" 
that a suspect is forced to give against himself by 
performing certain acts or surrendering samples from 
his body. The Fifth Amendment doesn't protect a person 
against this type of seizure.^o but the Fourth and Four- 
teenth Amendments do to a certain extent. The Four- 
teenth, which purports to guarantee that the legal 
process will be applied fairly and evenly to each suspect, 
is brought into this issue by the need to curb the over- 
zealous actions of the cops. These fools see themselves 
as crusaders on a holy mission against the odious forces 
of the Devil, and their concern for the Devil's rights (If 
any) tends to be quickly outweighed by their eagerness 
to get evidence of his guilt. The nature and degree of the 
physical intrusion, as well as a consideration for due 
process in conducting it, is the focus of the Fourteenth 
Amendment concern over the gathering of this kind of 
evidence.5i The lack of suspect participation required for 
the delivery of the evidence is the focus of attention 
where the courts have played down its testimonial 
nature and denied its entitlement to Fifth Amendment 
protection." 

Examples of such "nontestimonial evidence" include 
posing before witnesses (the "Identification lineup"), 
speaking aloud for them," modeling incriminating cloth- 
ing,5'' and giving samples of one's handwriting for com- 
parison analysis."/56 of a less participatory nature are 
such things as the taking of fingerprints, photographs, 
measurements, and samples of body tissue (e.g. blood).^^ 
None of these types of evidence are considered to be 
"testimonial"ln the sense of providing a confession, bi t 
there's no question that, in providing them, the suspect 
is helping to cops to convict him. In some states the 
refusal to submit nontestimonial evidence can even be 
held as an assumption of guilt; a motorist in South 
Dakota, for example, can be convicted of drunk driving 
on the basis of his refusal to give the cops a blood sample 



189 - 



for alcohol testingi'^ if the refusal to give evidence can 
Itself be evidence, one wonders how long it will be In this 
country before the failure to confess will be considered 
to be a confession... 



REFERENCES 

1. Chambers v Florida, 309 US 227, 237-238, 60 SCt 472, 477 
(1940) 

2. 1 Stephen (Sir James Fitzjames Stephen), A History of 
the Criminal Law of England, note 442 (1883) 

3. Murphy V Waterfront Commission of New York Har- 
bor, 378 US 52, 55, 84 SCt 1 594, 1 596-1 597 (1964) 

4. as. V Feldman, 322 US 487, 489-490, 64 SCt 1082, 1083 
(1944) 

5. Frank v Maryland, 359 US 360, 376, 79 SCt 804, 814 
(1959), J. Douglas dissenting 

6. Olmstead V U.S., 277 us 438, 473, 48 SCt 564, 570 (1928), 

J. Brandeis dissenting 

7. Mapp V Ohio, 367, US 643, 662, 81 SCt 1684, 1695 (1961), 
J Black concurring 

8. Boyd V U.S., 116 US 616, 633, 6 SCt 524, 534 (1886) 

9. U.S. vKatZ, 389 US 347, 351, 88 SCt 507, 511 (1967) 

10. Title III Of the Omnibus Crime Control and Safe Streets 
Act of 1968, Title 18 U.S.C. Sections 2510 et seq. 

11. Alderman v U.S., 394 US 165, 179-180 n. ii, 89 set 961, 
969-970 n. 11 (1969) 

12. U.S. vDorfman, 690 F2d 1230, 1235 (7th CIr. 1982) 

13. Fisher V U.S., 425 US 391, 426-427, 96 SCt 1569, 1589 
(1976) 

14. US. V White 322 US 694, 699, 64 SCt 1248, 1251 (1944) 

15. Andresen V Maryland, 427 US 463, 472-473, 96 SCt 2737, 
2744-2745 (1976) 



- 190 



16. U.S. V Bryan, 339 US 323, 331, 70 SCt 724, 730 (1950) 

17. Roberts VU.S., 445 US 552, 557-558, 100 SCt 1358, 1362- 
1363(1980) 

18. In reAgosto, 553 FSupp 1298, 1308 (D. Nev. 1983) 

19. Trammel V U.S., 445 US 40, 47, 100 SCt 906, 910 (1980) 

20. People 1/ Stritzinger Cal. Ct. App., 2d Dist., 10/29/82 

21 . In re Agosto, 553 FSupp at 1 324 

22. Trammel v U.S., 445 US at 53, 100 SCt at 914 

23. In re Agosto, 553 FSupp at 1 325 

24. In re Grand Jury Proceedings, 647 F2cl 51 1 , 51 2-51 3 (5th 
Cir.1981) 

25. In re Verplank, 329 FSupp 433, 436-437 (CD. Cal. 1971) 

26. U.S.V Nixon, 418 US 683, 709, 94 SCt 3090, 3108 (1974) 

27. In re Agosto, 553 FSupp at 1 303 

28. In re Verplank, 329 FSupp at 438 

29. In re Agosto, 553 FSupp at 1 306-1 307 

30. Fisher V U.S., 425 US at 403-404, 96 SCt at 1 577-1 578 

31. Upjohn V U.S., 449 US 383, 401-402, 101 SCt 677, 688-689 
(1981) 

32. Miranda v Arizona, 384 US 436, 478, 86 SCt 1602, 1630 
(1966) 

33. as. V HOffa, 385 US 293, 302-303, 87 SCt 408, 413-414 
(1966) 

34. as. V White, 401 US 745, 751-752, 91 SCt 1122, 1126 
(1971) 

35. U.S. V Yonn, 702 F2d 1341, 1347 (11th Cir. 1983) 

36. as vPadllla, 520 F2d 526, 528 (1st Cir. 1975) 

37. People vSeaton, Cal. Ct. App., 3d Dist., 1/17/83 

38. as V Hearst, 563 F2d 1331, 1344, 1348 (9th Cir. 1977) 

39. as V Shapiro, 335 US 1, 34-35, 68 SCt 1375, 1393 (1948) 

40. In re Doe, 711 F2d 1187, 1193 (2d Cir. 1983) 

- 191 - 



41. State V Holland, 98 wash.2cl 507, 656 P2d 1056, 1063- 
1064 (Wash. 1983) 

42. Fisher V US, 425 us at 403, 96 SCt at 1577 

43. In re Agosto, 553 FSupp at 1 31 2 

44. American Bar Association (A.B.A.) Model Rules of 
Professional Conduct, Rule 1.6: Confidentiality of 
Information (1983) 

45. Fare v Michael C, 439 us 1 310, 1 31 5, 99 SCt 3, 6 (1 978) 

46. People V Florendo, ill. Sup. Ct, MiaiQi 

47. Branzburg v Hayes, 408 us 665, 706-708, 92 SCt 2646, 
2669-2670(1972) 

48. as. VPayner, 447 US 727, 732 n. 4, 100 SCt 2439, 2444 
n. 4 (1980) 

49. U.S. V Couch, 409 US 322, 335, 93 SCt 611, 619 (1973) 

50. Schmerber v California, 384 US 757, 761, 86 set 1826, 
1830-1831 (1966) 

51. Roschin V California, 342 us 165, 172-173, 72 set 205, 
209-210(1952) 

52. Schmerber v California, 384 us at 765, 86 set at 1832- 

1833 

53. US V Wade, 388 us 218, 222-223, 87 SCt 1926, 1930 
(1967) 

54. Holt V U.S., 218 US 245, 252, 31 SCt 2, 6 (1910) 

55. Gilbert v California, 388 us 263, 266-267, 87 set 1951, 

1953(1967) 

56. US V Hawkins, 501 F2d 1029, 1032 (9th Cir. 1974) 

57. South Dalcota vNevilie,_ US,_ 103 SCt 916, 918 (1983) 



192 



Chapter 13 



MIRANDA 

AND 

THE SEIZURE 

OF lyORDS 




193 



"in all criminal prosecutions, the accused shall 
enjoy the right... to have the Assistance of 
Counsel for his defense." 

The United States Constitution, Amendment vi 

(1787) 



in the united States, the Fifth Amendment says that 
a person's words - what we've referred to as "testimon- 
ial evidence" - may not be squeezed out of him and 
used to convict him of a crime.^ This testimonial evidence 
consists of everything which we've discussed in the last 
chapter under the broad category of "privileged state- 
ments," and additionally includes any kind of test results 
based upon physiological responses (as lie detector 
results are).2 

l/o/w/7teere£/ statements, however, can be used by the 
cops in a variety of ways. First, the statement itself can 
be used as evidence against the speaker; careless remarks 
which imply that the person knows something about a 
crime can be used in court as evidence that he was, in 
fact, involved in it. Second, a statement can be used as 
a lead toward finding other evidence against the 
speaker. Since a person has no expectation of privacy in 
a statement that he spontaneously blurts out, the 
inculpatory evidence which his remark points the cops to 
is not "fruit of the poisonous tree" (C.f. Chapter 5), and 
can be used against him. Third, a person's volunteered 
statements can be used to "impeach" his credibility at 
trial; when he attempts to give testimony that supports 
his innocence, and it doesn't jive with the earlier volun- 



195 



teered statements he's made, the prosecutor can bring 
out the statements in order to show the Jury that he's 
a liar. 

in some instances, even that which a person doesn't 
say — his silence — can be used against him to impeach 
(discredit) his testimony or enhance the punishment he 
gets upon conviction. Like a volunteered statement, 
silence is not forced; and it's the element of force which 
invokes the spirit of the Fifth Amendment. 

In analyzing the admissibility of a person's statements 
as evidence against him, it's useful to identify the precise 
time at which he becomes a defendant, up until that 
point, he's simply another citizen who may happen to be 
questioned as part of a criminal investigation. 

During this early investigatory phase, a person's failure 
to come forward with information about a crime can 
constitute material for the impeachment of his testi- 
mony at trial. Consider, for example, a man who kills in 
self-defense but attempts to escape notice by keeping 
quiet about it. When he's eventually identified and 
brought to trial, the prosecutor can destroy the credibil- 
ity of his claim to self-defense by pointing out that his 
silence was inconsistent with conduct expected of an in- 
nocent man.' 

Statements which are foolishly volunteered during 
the investigatory phase can be used as primary evidence 
against the speaker. Because of the Miranda Rule, which 
will be discussed shortly, it's usually necessary for the 
cops to warn a suspect that his statements can be used 
against him; if they fail to give the warning they can't 
use the statements. In the investigatory phase, however, 
the person hasn't been accused yet, and the warning 
isn't required. It doesn't matter that they may have 
focused their attention on a particular person, because 
it's still just an investigation.* Anybody gullible enough to 
even talk to a criminal investigator, much less volunteer 
statements to him, risks having his words used as 



196 - 



evidence against liim at trial... the lacl< of Miranda 
warnings notwitiistancling.5 

Once a person has been marl<ecl for prosecution and 
tal<en into police custody he has entered the "adversary" 
phase of the criminal process,- he's officially "in trouble." 
The adversary phase begins the moment a person is 
either indicted or arrested, whichever comes first.^ The 
term "adversary" means 'opponent" or "enemy," and 
that's a pretty good assessment of the relationship 
between the government and a criminal suspect. Any 
illusions of cordiality that may have existed previously 
should be dispelled with the onset of the adversary 
phase,- it's all-out war from then on. 

For this reason, the early adversary phase is an espec- 
ially critical period for the suspect,- the cops will do 
anything they can to solidify the evidence against him. 
Much of their activity in this regard is cloaked under the 
guise of legitimate procedure, so the average person 
wouldn't even suspect that he's being tal<en advantage 
of. It isn't until he gets into court that he realizes that 
those friendly cops who drove him bacl< to town had 
successfully baited him for statements implying guilt, 
that his identification lineup was a prejudicial farce, and 
that his "homey" in the county jail cell was really a paid 
informer assigned to get disclosures from him. Such 
slimy police tactics have led the Supreme Court to rule 
that a person should be allowed to have his lawyer's 
assistance at any proceedings during the adversary 
phase - lineups, interrogation, psychological evalu- 
ations, etc With the suspect's lawyer there to lool< out 
for his interests, the cops have to stay relatively honest, 
and the suspect is guarded against the unwitting release 
of damaging evidence from his own lips. 



- 197 - 



"... the efficiency of the raci< and the thumbs- 
crew can be matched, given the proper subject, 
by more sophisticated modes of 'persuasion.'" 

Chief Justice Earl Warren in Blackburn v Ala- 
bama, 361 US 199, 206, 80 SCt 274, 279 (1960) 

Infused with the conviction that it's sound police work 
to use a little pressure to get the truth out of a suspect, 
the boys in blue have developed over the years a whole 
technology of interrogation methods designed to phys- 
ically and psychologically exhaust the will to resist.^ in 
the old days they'd isolate the suspect in a windowless 
room where there would be no witnesses except the 
police interrogators themselves. The suspect would be 
seated in the center of the room, often with a low- 
hanging light directed on him, and the cops would alter- 
nately fire questions at him and slap him around to l<eep 
his attention. These 'third degree" sessions might go on 
for days, usually with denial of food and sleep. Some- 
times they'd even threaten to l<ill the suspect if he didn't 
confess. Since these l<inds of tactics were too close to 
torture, the police were eventually forced to modify the 
interrogation process by refraining from beating the 
suspect and allowing him to eat and sleep at intervals. 
Psychological ploys, rather than terror, became the 
principal "swords of truth." 

The atmosphere of police domination, the isolation 
from supportive family and friends, and the aura of con- 
fidence in the suspect's guilt remained as the framework 
for the interrogation process, and a variety of tricks 
were devised to capitalize on the suspect's insecurity in 
this setting. Most of them rely on a suspect's lack of crit- 
ical perception concerning inference and deduction — 
the very skills that a lawyer is expert in. 

They might pose the assumption of guilt as a fact, and 
sucker the suspect into explaining his reasons (Example: 
"We already have proof that you're guilty, Al, but we'd 



198 - 



just like to confirm some of the detaiis about why you 
did it... "). Similarly, they might coax out an explanation 
by minimizing the moral seriousness of the crime and 
casting blame on the victim or on society (Example: "It 
wasn't your fault you did it, Bob; anybody would have 
gotten angry in that kind of situation. Besides, the son- 
ofabitch was asking for it. Everybody knows what a 
scumbag he is..."). Another ploy they can use is to give 
false legal advice. For example, the cop might create the 
illusion of fairness by showing the suspect that he's 
willing to allow him to stay silent, but then put the scare 
in about how bad it will look later if he doesn't talk, and 
how innocent people don't have anything to hide, if the 
police can offer the suspect a defense explanation long 
enough to coax an admission out of him, they can then 
come back around with some controverting circum- 
stantial evidence that might rattle him enough to tell 
the whole story (Example: "Okay, Chuck, we can maybe 
buy your story about shooting this dude in self-defense, 
because he did have a gun... but now, how are we going 
to explain the fact that you went over to his place 
carrying a gun yourself?"). 

Some interrogative ploys involve staging an act in 
order to set up the suspect to make an incriminating 
statement. A phony identification lineup might be 
conducted, for example, where the suspect is falsely 
picked out for a crime he didn't do,- the threat of a 
frameup might thereby induce him to cooperate with 
interrogators. Alternatively, they might confront him 
with the news that his partner had talked and put the 
blame on him - or that his fingerprints were found at 
the scene of the crime. Though untrue, sUch stories 
might upset a person enough to make him crack. The 
most famous of these theatrical-type ploys is the "iviutt 
and Jeff" or "Good cop-Bad cop" act. The bad cop pounds 
his chest, acts deranged, and generally intimidates the 
suspect, whereupon the good cop intercedes and, having 
won the suspect's trust and gratitude, proceeds to take 
a statement, if the suspect starts to clam up, the good 



199 



cop will threaten to turn him back over to the bad cop, 
who's "not such a nice guy." 

Sometimes the cops would simply let the suspect's 
imagination go to work for them; leaving him sitting 
naked in an interrogation room is likely to prime all man- 
ner of suspicions and fears about what's going to happen 
next. If all their tricks fail, the cops can still attempt to 
impress the suspect with their inexorable will to get the 
truth. They'll dismiss and discourage any explanations of 
innocence, doggedly maintaining that the suspect is 
guilty, and that they won't relent until he "comes clean." 

It was against the background of such interrogation 
practices that in 1966 the U.S. Supreme Court created its 
famous MirandaRute — a procedural safe-guard designed 
to assure that every criminal suspect will at least be 
aware that he has some rights. The Rule says that, 
before the cops can question somebody who's in cus- 
tody, they have to tell him about his rights against self- 
incrimination under the Fifth and Sixth Amendments.^ 
iviost cops aren't bright enough to remember them, so 
they carry around little printed cards from which they 
can "read him his rights." 

There are four basic elements to these Miranda warn- 
ings: (1) You have the right to remain silent; (2) Anything 
you say can and will used as evidence against you; (3) You 
have the right to have an attorney present during 
questioning; and (4) if you can't afford an attorney you 
have the right to have a free appointed one. The exact 
words may differ slightly, but the cops are obligated to 
get across the general Idea of each of these four warn- 
ings before they question an arrestee. The only except- 
ion to the Rule Is that failure to give the fourth warning 
has been excused in a few cases where there was no 

doubt that the suspect had his own attorney and ample 
funds.io/^V^^ 

As we've stated, the Miranda warnings don't have to 
be given to everybody the cops talk tO; it's only when 
"custodial interrogation" Is about to occur that they're 



200 



absolutely required. "Custodial" refers to being under 
arrest, or something of the sort. It might begin when a 
suspect is accused of the crime," when guns are drawn,^* 
or when any other such event puts the suspect under 
police custody or significantly restricts his f reedom.s An 
arrest on a misdemeanor charge, such as a traffic 
violation, demands a recitation of the Miranda warnings 
as surely as does a felony arrest." If the suspect is a 
prisoner who's already ioclced up for something else, the 
situation becomes "custodial" when any change in his 
surroundings adds an additional imposition against his 
freedom of action - such as being interviewed by a 
police investigator." An investigator must give a pris- 
oner Miranda warnings, regardless of the reason for his 
being in custody, and regardless of the fact that it may 
not initially be a criminal investigation.^^ Thus, even a 
pretrial proceeding which involves testimonial question- 
ing (e.g. a psychological evaluation) demands that 
Miranda warnings be given first." 

iviany situations which the public commonly assumes 
are "custodial" are really merely investigative inquiries 
and don't require that Miranda warnings be given. On- 
the-scene questioning, where the cops are trying to get 
facts to determine whether a crime has been commit- 
ted, is one such setting." interviews which are voluntar- 
ily conducted — such as when someone invites tax 
investigators into his home for talks, or when he goes 
down to the police station on his own for a discussion 
with a detective - also fall into this category, even 
though the person may already be singled out as the 
primary suspect. V^" Blocking the exit of a person's car 
doesn't mean that he's under arrest,^* and just because 
questioning happens to take place in a police station it 
doesn't mean that the person isn't free to leave.20/21 
Oddly enough, even witnessing before a grand jury isn't 
considered a custodial situation, and as in these other 
situations, no M/ra/7flfa warnings are required.22 

Being in custody is the threshold condition needed for 
compulsory Miranda warnings, but it's also necessary 



201 



that there Indeed be some sort of "Interrogation" - 
either express questioning or the functional equivalent 
of It. Even actions on the part of the police which they 
should know would be likely to elicit an Incriminating re- 
sponse can be considered a form of Interrogation.^^ An 
example would be the placement of a paid Informant 
into a prisoner's cell with the objective of picking up In- 
formation from him. Even if the cops explicitly tell their 
snitch to merely listen for things, there's a probability 
that he'll be actively drilling for Information in the hope 
of being better rewarded. The cops ought to realize that 
this might occur, and that makes the whole scheme a 
form of interrogation which is Illegal without Miranda 
warnings. 

Accusations^ and giving a speech which appeals to the 
sentiments^" are both ways of provoking a suspect's 
response without actually asking a question; they too 
are forms of Interrogation. Some questions are inevit- 
ably part of the normal routine of booking an arrestee 
into jail - one's name, address, etc. These kinds of 
questions are not "interrogation," but anything else - 
questions about one's personal property, for example - 
would be.25 

It can often be a very fine line that distinguishes 
between interrogation and mere conversation. A quip, 
for example, or comments between officers which aren't 
directed at the suspect, generally wouldn't be consi- 
dered interrogatlon.^/^e Neither would it be Interro- 
gation when a policeman attempts to clarify what the 
suspect means by his equivocal response to the l\Alranda 
warnings. Naturally, a person must understand what 
they mean or the warnings would be pointless. If a cop 
isn't sure whether the suspect understands, wants a 
lawyer, or what, then he's entitled to ask enough 
questions to clear up any misunderstanding; this isn't 
considered interrogation.^^ 

Though the Miranda Rule is unquestionably a mighty 
bulwark for the citizen, particularly the poor or unedu- 



- 202 - 



cated one, It's regarded by law-and-order buffs as a 
symbol of judicial coddling of the crlmlnaL^s within the 
conservative government of today there are powerful 
currents at worl( seeldng an opportunity to do away 
with It. 

Once a person has been given the Miranda warnings, 
and understands them, there are three possible re- 
sponses that he can mal<e: (1) he can invol<e his constitu- 
tional rights, (2) he can waive them, or (3) he can do 
neither (what we shall refer to here as a "non-waiver"). 
The Miranda Rule speaks of two basic rights — that of 
being silent and that of having an attorney. Thus, we 
must consider separately the consequences of invoking 
or waiving each of these rights. 

When a person invokes his right to silence — when he 
tells the cop that he doesn't wish to talk — all interro- 
gation must cease immediately .^ Any questions they ask 
after that are improper according to the Miranda Rule, 
and they can't use the answers as evidence. The cops 
don't have to tell the defendant that he can shut up 
their questioning this way, but they are obligated to re- 
spect his wishes and stop promptly upon his request.^^ it 
Isn't clear how long they have to wait before they can 
try starting up Interrogation again after being turned 
down.'o/'^ but It would definitely be illegal for them to 
badger somebody after he had plainly said he didn't 
want to talk. When the subject of their inquiry is a new 
crime, however - different from the one the suspect 
invoked his silence on - they can reinitiate interrogation 
Immediately (after giving a new set of Mfrd/7£/d warnings, 
of course)." 

When a person invokes his right to have an attorney 
present, this too has the effect of immediately turning 
off all interrogation.'' The cops don't have to provide an 
attorney immediately - they can delay it for a while if 
they want to do some more field investigation first - 
but they can't do any interrogation in the meantime.'" 
Unlike the situation with an invocation of silence, it's 



203 



quite settled that after invoking the right to counsel the 
cops can't come bacl< later and attempt to reinitiate 
interrogation unless either (1) they furnish a lawyer, or 
(2) the defendent himself initiates further communica- 
tion, effectively opening the door for their questions." 
Merely asking for his lunch doesn't constitute the 
initiation of communications we're talking about here; 
the suspect has to show a willingness to start up a dis- 
cussion about the investigation, and he also has to 
Icnowingly waive his right to an attorney." 

Should the cops wish to reinitiate interrogation con- 
cerning a new, unrelated crime, it's not as simple a 
matter as with the invocation of silence. Some courts 
have allowed it,"/" while others have not.'V^ The 
problem doesn't usually occur when the new crime is 
being investigated by the same bunch of cops who gave 
the initial Miranda warnings; they already know about 
the suspect's request for a lawyer, so they (properly) 
leave him alone, it's when cops from a different jurisdic- 
tion come in and start interrogation about a new crime 
that the potential for a Mranofa violation exists. The 
question is basically one of responsibility; should cops be 
responsible for ascertaining whether or not a prisoner 
has already invoked his right to counsel before attempt- 
ing to interrogate him about a new crime? It's another 
grey area in the law which could go either way in court. 

Another effect of invoking one's right to counsel is 
that any subsequent consent that he gives them with- 
out having his lawyer present becomes invalid. Should 
the police act upon such invalid consent — to search his 
home, for example - none of the evidence they find can 
be used in court. Only by first withdrawing his request 
for counsel, and then waiving the right, can his consent 
be made valid.''° 

Somewhere between the definite invocation and the 
definite waiver of one's M/ranofa rights there exists what 
we might call a "non-waiver." Its effect is to prevent the 
assumption of a waiver, and in doing so it tends to keep 



204 



the person's rights alive. Silence is a non-waiver. When a 
person fails to ask for a lawyer, or refuses to sign the 
waiver form which the cops often present after they 
give M/rd/7cfd warnings, it doesn't mean that he has given 
up his rights,- he has simply remained silent on the 
Issue.^V^V^' Likewise, an equivocal response is also a non- 
waiver. When a cop gives the Miranda warnings and his 
suspect says "I think I should call my lawyer," it leaves 
open the question of exactly what the guy really wants 
to do. A normal human being would interpret such a 
statement as being an Invocation of the right to counsel, 
but alas — cops and judges are neither normal nor 
human. If the person speculates about whether he 
should have a lawyer, rather than coming right out and 
demanding one, he's making a non-waiver, and the police 
are justified in asking more questions In order to clarify 
his wishes. Something like "Do you want to talk about 
it?" would be proper under the circumstances, and not 
at all violative of the Miranda Rule.^^ 

waiver of one's rights means that the person know- 
ingly gives them up,- he realizes he's entitled to them, and 
nevertheless wishes to cast them aside, it has sagely 
been said that there's no such thing as an intelligent, 
voluntary waiver of Fifth Amendment rights** (indeed, 
this author would expand that claim to Include the other 
amendments as well), waiver of one's right against self- 
incrimination, however, is especially Irrational; it's far 
easier to Imagine an Intelligent decision to commit 
suicide than an Intelligent decision to deliver oneself into 
the hands of hostile mental defectives. 

The cops would claim that confession is good for the 
soul, and that the relief it affords the guilty conscience 
is compensation for the consequent punishment. There's 
much that doesn't go into a person's "intelligent" 
decision to waive his right to silence, however. When the 
cops attempt to convince a suspect that he should 
"make a clean breast of things," they don't tell him what 
all the consequences will be. They don't tell him that It'll 
cost him all his savings and everything he owns to pay 



- 205 



the legal fees,- that it'll kill whatever professional, oc- 
cupational, or business opportunities he's managed to 
build during this lifetime; that it'll destroy his marriage, 
deprive his children, and wreak untold mental hurt upon 
those he loves,- that it'll consign him to an endless suc- 
cession of insults, deprivations, and torment at the 
hands of inferiors and petty tyrants; that it may result 
in his death or loss of health; and that, if he does finally 
get out alive, he'll always be stigmatized within society 
and deprived of many opportunities that are open to 
"decent" people (viz. those without a prison record), if all 
the consequences of conviction could be impressed upon 
a person, and if his state of mind at the time were 
objective enough to allow him to logically reason things 
out, perhaps an "intelligent" waiver could be achieved. 
Short of that, however, a waiver of constitutional rights 
is at best an uninformed, irrational mistake. 

Ordinarily a waiver has to be stated explicitly, and its 
validity is heightened if it can be put into writing.^^ it is 
possible, however, for a waiver to be made without 
directly saying so. This can occur when a person under- 
stands thst he's being asked to waive his rights, and then 
goes ahead and starts talking with the apparent intent 
of making a waiver^s 

A waiver isn't irreversible. Any time a person wants to 
invoke his right to have an attorney present or his right 
to silence, all he has to do is say so; the interrogation 
must stop immediately, and the cops can't ask any more 
questions until he gives them permission-^ The cops don't 
have to tell a person that he has the power to turn them 
on and off at will, but they're certainly required under 
the Miranda Ru\e to abide by his wishes.^^ 

After a person waives his right to be silent and does a 
little talking to the police, his failure to disclose other 
pertinent information might be interpreted as a form of 
dishonesty, it's as though they expect a guy to go ahead 
and confess everything once he breaks his silence. 
Holding his tongue about certain incriminating matters 



206 



cannot be used as evidence against him, but it can be 
used to impeach his credibility if he testif ies«« - it's one 
more reason not to waive the right in the first place. 

What we've been discussing - custodial interrogation 
- doesn't account for some of what a suspect says while 
he's in custody. Statements made to persons o£/7erthan 
official American police officers can be used as direct 
evidence in court. Off-duty cops who are moonlighting 
as security guards or store detectives are not considered 
"official" police; unless they're working in concert with 
regular on-duty police officers, and at their request, they 
have the same official status as civilians. That means 
they don't have to give Miranda warnings or otherwise 
defer to a person's constitutional rights.*^ The same is 
true in regard to police of foreign countries,- Canadian, 
Mexican, or any other police that an American may 
happen to fall prey to, owe him nothing In terms of con- 
stitutional rights.«8/«9 Friends and relatives who come to 
visit the suspect in jail are similarly free of official 
restrictions.50 Anything that any of these people 
happens to pry out of a suspect is evidence for the 
prosecutor's case-in-chief. The only way a defendant can 
object to the use of such statements against him is if he 
can show that the cops deliberately set up a situation 
that was likely to induce them.^^ 

Another exception to the use of improperly gotten 
statements is when the cops use them not as evidence, 
but as ieads to evidence. If the statements turn them 
onto a third party who can offer the police testimony 
against the suspect, they can often get away with using 
such testimony in court. They can overcome the sus- 
pect's objection to using such "fruit of the poisonous 
tree" by showing that the statements he made were 
voluntary, even if they were in violation of the l\/liranda 
Rule."/" 

Improperly acquired statements can also be used 
against a defendant to impeach his testimony at trial. All 
they have to do is show that the statement was made 



207 



voluntarily, which presumably makes it trustworthy by 
legal standards.^" This impeachment angle gives the cops 
a tremendous advantage in court because it allows them 
to slip in their illegally acquired material - not only 
statements that were taken in violation of the Miranda 
Rule, but even physical evidence which was taken in 
violation of the Fourth Amendment's - and when the 
jury hears it, it's just as damaging as if it were being 
presented as direct evidence. The cops can't use improp- 
erly acquired evidence in their case-in-chief, so the 
defendant can avoid being confronted by it if he simply 
refuses to testify,- they can't impeach his testimony if he 
doesn't give any. unfortunately, this robs him of the 
opportunity to take the stand and declare his innocence, 
so it comes down to a decision of trial strategy - 
whether to take the stand and be impeached or sacrifice 
the opportunity to testify in one's own behalf. 

Involuntary statements, such as those which have 
been wrenched from a suspect by "third-degree" tactics, 
are not considered trustworthy by legal standards, and 
can't even be used as impeachment materiaL^e state- 
ments which have been taken from a person in violation 
of his right to counsel, written ones as well as oral ones, 
are likewise barred from such use." 

Regardless of whether one is being held in custody or 
is on release pending trial, there are several ground rules 
which govern the taking of statements. They're based 
upon the Fifth and Sixth Amendment principles that 
we've discussed already, but deserve to be treated 
separately because they may come into to play at times 
when a defendant may not be in custody (as opposed to 
the Miranda Rule). 

First of all, silence — what a person doesn't say prior 
to trial — can be used to impeach his testimony if 
Miranda warnings hadn't been given at the time.58 it's as 
though a person has an obligation to come forward and 
tell everything he knows at the earliest opportunity 
except when he's been given Miranda warnings. It's a 



208 



very artificial assumption, and one whicli Is totally in 
favor of the cops, because it gives them something to 
use later against people who were involved in a crime 
but weren't identified right away as suspects. The 
absurd implication that it makes Is that every good little 
citizen should go running to the nearest constable as 
soon as he knows something that might be useful, even 
if he tends to put himself into hot water in the process. 

If the Miranda warnings are given, however, it puts 
things in a whole different perspective; nobody can be 
faulted for keeping his silence after the police have 
specifically given him the option, and the silence cannot 
thereafter be used to impeach his testimony.59 

Silence can also be used against a person by the judge 
at sentencing time. On the same theory as mentioned 
above - that it's the duty of every citizen to be a rat 
for the government - they can enhance a person's 
punishment and give him more prison time on the basis 
of his refusal to inform on his partners. The only way he 
can get out from under this bit of judicial extortion is to 
claim his privilege against self-incrimination at the time 
of the trial.60 

Statements which have been taken from a defendant, 
though proper by Fifth Amendment standards, are not 
usable as evidence against him when they result from an 
Illegal arrest, in other words, if the cops barge in and 
violate a person's Fourth Amendment rights in the 
process of arresting him, they can't expect to clean It up 
by reading him his Miranda warnings afterward; they've 
blown the whole scene, and nothing the arrestee says at 
that time can be used as evidence against him because 
it's all "fruit of the poisonous tree."«^ An illustration of 
this principle can be seen in the case of a seventeen-year- 
old boy whose will was overborne by a fifty-three-year 
old cop. Without probable cause to arrest him, the cop 
went to his home and accused him saying, "I'm here to 
pick you up." The kid demurely went along, and under 
police interrogation he eventually made a confession. 



209 



Since the confession was obtained "properly," with 
Miranda warnings and ail, it held up initially in court and 
resulted in conviction. On appeal, however, it was tossed 
out because the initial improper arrest spoiled the 
confession, which was a direct causal result of it.^^ 

Though they can't use the statements themselves as 
evidence in such cases, the cops have been able to 
salvage some usefulness out of them as leads to other 
evidence which they could use. All they have to do then 
is claim that they were about to discover the new 
evidence anyway through independent police work.^^ 

Statements which a suspect is induced to mal<e with- 
out his lawyer being present are also in admissible as 
evidence. This rule was originally created by the Supreme 
Court in order to foil some of the police shenanigans that 
used to tal<e place before the MiranctaRu\e came out. Not 
only was it deemed improper to deny a suspect the 
assistance of counsel while he's being questioned by the 
police,«« but it was also held to be improper for them to 
bait him for admissions with an undercover informant in 
the absence of counseL^s Later, the use of psychological 
ploys - e.g. preying upon emotion, religiousness, feeble- 
mindedness, etc. - was also condemned when plied to a 
suspect with no access to counsel.^" More recently, even 
the creation by police of a situation which is likely to 
induce a suspect to make incriminating statements 
outside the presence of his lawyer, has been declared 
improper.5i 

There are several exceptions to the rule against using 
statements acquired in the denied absence of counsel. 
For one, a spontaneously volunteered statement can 
generally be used under any circumstances.^^ Careless 
remarks that people occasionally spit out without 
thinking, or in the heat of emotion, tend to fall into this 
category. Statements that a person thoughtlessly blurts 
out during a time when he's free of restraint,66 or In a 
place where he shouldn't expect privacy ,'« are as much 



210 - 



"volunteered" as those which are deliberately directed 
to the police. 

Another exception is the use of statements which a 
suspect mal<es in the process of committing an ongoing 
crime.«V68 Some guys can't seem to lay low even while 
the heat's on, and when they're overheard making plans 
for some new crime during the adversary phase of a 
previous one, these statements are usable as evidence, 
with or without the attorney's presence. Such state- 
ments are likely to be overheard by police surveillance as 
the suspect attempts to continue his dope business or 
arrange for a witness to be eliminated. 

A further exception occurs in cases where the cop 
needs to do some emergency interrogation in order to 
head off a disaster or neutralize a threat to his own 
safety or that of the public. Miranda warnings are thus 
unnecessary when there's a bomb ticking away or a 
loaded gun lying around,- the immediate concern of 
neutralizing the danger overrides the need for proced- 
ural niceties, if the suspect is gullible enough to talk to 
the cops or show them what they're looking for, his 
good citizenship is certain to be rewarded by the use of 
his statements against him at trial.«V'° 

Prior to trial there are various kinds of proceedings 
which are held in order to answer preliminary questions 
about the defendant, such as his identification by 
eyewitnesses, or his sanity. As we've already established, 
these proceedings offer plenty of opportunities for the 
cops to stack the deck, so it's crucial that a person have 
a little help from his lawyer on these occasions. A 
defendant is absolutely entitled to have counsel present 
during such events as his identification iineup.^^ While a 
lawyer isn't usually allowed to attend psychological 
examinations, his client is entitled to his assistance in 
preparation for them.^^ 

At a suppression hearing, where the judge decides 
whether or not he's going to allow particular pieces of 
evidence to be used in a trial, it's sometimes necessary 



211 



for a defendant to make an admission in order to get tlie 
standing to object to tlie evidence. For example, if he 
doesn't want the poiice to use his illegally seized bag of 
dope as evidence against him, he might first have to 
admit that it belongs to him so he can assert his right to 
object to its seizure, and thereby get the evidence 
suppressed... but if he does cop to owning it, he's 
admitting his own guilt. It would be a Catch-22 dilemma 
for the defendant if it weren't for a Supreme Court 
ruling that prohibits such admissions from being used as 
evidence. Provided that a person files an appropriate 
objection, anything he admits to in order to get evidence 
dropped at a suppression hearing is inadmissible itself as 
evidence." 

In pre-trial proceedings where a defendant is evalu- 
ated by state-employed mental health worl<ers, his 
statements are barred from being used as evidence for 
the case-in-chief. They can be used against him to 
impeach his testimony, however, and that's one reason 
why prior preparation by counsel is important^*/" 

The ultimate forum for a person's statements is the 
courtroom, where their impact is made and their sub- 
stance recorded for posterity. The importance of one's 
words is probably no greater at any time or place than 
in there. Conversely, the integrity of one's silence is 
nowhere more significant than at trial; so valuable is this 
right that it's improper for a defendant's silence at trial 
to even be mentioned before the jury, much less used to 
discredit him.V^V^' The right to be silent isn't an inalien- 
able one, however; when it serves the designs of the 
government, a person can be squeezed like a lemon for 
his testimony, in the next chapter we'll see just how it's 
done. 



- 212 



REFERENCES 

1 . Fisher V U.S., 425 US 391 , 408, 96 SCt 1 569, 1 579 (1 976) 

2. Counselman v Hitchcock, 142 US 547, 562, 12 set 195, 
198(1892) 

3. Jenlcins v Anderson, 447 US 231, 238, 100 SCt 2124, 2129 
(1980) 

4. BeckWith V U.S., 425 US 341, 347, 96 SCt 1612, 1616 
(1976) 

5. l\/liranda v Arizona, 384 us 436, 478, 86 set 1602, 1630 
(1966) 

6. Spano VNew York, 360 US 315, 327, 79 SCt 1202, 1209 
(1959), J. Stewart concurring 

7. as V wade, 388 us 21 8, 225, 87 SCt 1926, 1931 (1967) 

8. iviiranda v Arizona 384 US at 454-456, 86 SCt at 1 61 7 

9. id, 384 us at 444-445, 461, 86 SCt at 1612-1613 

10. US. vi\/iessina, 388 F2d 393, 395 (2d Cir. 1968) 

11. US vCullinan, 396 FSupp 516, 517-518 (D. III. 1975) 

12. l\/liranda v Arizona, 384 US at 473 n. 43, 86 SCt at 1627 
n.43 

13. US. V Jordan, 557 F2d IO8I, 1083-1084 (5th Cir. 1977) 

14. us. V Jimenez, 602 F2d 139, 143-144 (7th Cir. 1979) 

1 5. Berj^wery Mccarty^ _ US _, 104 set 31 38, 31 si (1 984) 

16. Cervantes v walker, 589 F2d 424, 428 (9th Cir. 1978) 

17. Maf/7/S V U.S., 391 us 1, 4-5, 88 SCt 1503, 1505 (1968) 

18. Estelle V smith, 451 US 454, 469, 101 SCt 1866, 1876 
(1981) 

19. Cervantes v Waiker, 589 F2d at 427 

20. Oregon v i\/iathiason, 429 US 492, 495, 97 set 71 1, 714 

(1977) 



213 



21. as. V Luther, 521 F2cl 408, 410 (9th Cir. 1975) 

22. U.S. V Washington, 431 US i8i, 186, 97 set 1814, 1818 

(1977) 

23. Rhode Island V innis, 446 US 291, 300-302, 100 set 1682, 
1689-1690(1980) 

24. Brewer v Williams, 430 US 387, 400-401, 97 set 1232, 
1240-1241 (1977) 

25. as. V Downing, 665 F2d 404, 406 (1st eir. 1981) 

26. state vLadd, N.e. Sup. et, 5/3/83 

27. Cannady v State, Fla. Sup. Ct., 2/24/83 

28. Lederer, Miranda v Arizona - The Law Today, 78 Mil. 

L Rev. 107, 162 (1978) 

29. The Supreme Court, 1965 Term, 80 Harv. L Rev. 91, 205 
(1966) 

30. stone. The l\^iranda Doctrine in the Burger Court, Sup. 
et. Rev. 99, 129-137 (1977) 

31. Lederer at 155-1 57 

32. l\/lichigan vMosley, 423 US 96, 105-106, 96 set 321, 327 
(1975) 

33. Edwards v Arizona, 451 US 477, 484-485, 101 set 1880, 
1885(1981) 

34. i\/iiranda v Arizona, 384 US at 474, 86 set at 1628 

35. Oregon vBradshaw, _ US _, 103 set 2830, 2834-2835 
(1983) 

36. Offut V State, Md. et. Special App., 7/7/83 

37. McFadden v Commonwealth, Va. Sup. et, 3/11/83 

38. State V Routhier, 137 Ariz. 90, 669 P2d 68, 75-76 (Ariz. 
1983) 

39. Karr V Wolff, 556 F2d 760, 765 (N.D. III. 1983) 

40. as V McCraney, 705 F2d 449 (5th eir. 1983) (No pub- 
lished opinion,- see 33 en 2131) 

41. Carnley v Cochran, 369 US 506, 516, 82 set 884, 890 
(1962) 



214 



42. as. vDiCiacomo, 579 F2d 121 1, 1215 (10th Cir. 1978) 

43. PallOtta V U.S., 404 F2d 1035, 1038 (1st Cir. 1968) 

44. Kuh, Symposium: Interrogation Of Criminal Defendants 
— Some Views on i\/iirancla v Arizona, 35 Fordham L 

Rev. 169, 233 (1966) 

45. North Carolina v Butler, 441 US 369, 373, 99 SCt 1755, 
1757 (1979) 

46. Anderson v Charles, 447 us 404, 408, 100 SCt 2180, 2182 
(1980) 

47. City of Grand Rapids vimpens, Mich. Sup. Ct., 12/7/82 

48. U.S vNagelberg, 434 F2d 585, 587 n. i (2d Cir. 1970) 

49. U.S vChavarria, 443 F2d 904, 905 (9th Cir. 1971) 

50. state vLoyd, La. Sup. Ct, 11/29/82 

51. U.S V Henry, aA7 US 264, 274, 100 SCt 2183, 2189 (1980) 

52. I\flichigan v Tucker, 417 US 433, 444-446, 94 SCt 2357, 
2364(1974) 

53. as. ex rel Hudson v Cannon, 529 F2d 890, 894-895 (7th 
Cir. 1976) 

54. Harris VNew York, 401 US 222, 224-225, 91 SCt 643, 645 
(1971) 

55. U.S V Havens, 446 US 620, 627-628, 100 SCt 1912, 1916- 
1917(1980) 

56. l\/lincey v Arizona, 437 US 385, 399-402, 98 SCt 2408, 
2417-2418(1978) 

57. Bishop vRose, 701 F2d 1150, 1157 (6th Cir. 1983) 

58. Fletcher v weir, 455 US 603, 102 SCt 1309 (1982) 

59. Doyle V Ohio, 426 US 610, 618-619, 96 SCt 2240, 2245 
(1976) 

60. Roberts VU.S., 445 US 552, 556-559, 100 SCt 1358, 1362- 
1364(1980) 

61. Taylor V Alabama 457 US 687, 102 set 2664, 2668 (1982) 

62. State V Freeman, N.c. Sup. Ct, 1/11/83 

- 215 - 



63. as. vBrookins, 614 F2cl 1037, 1042 n. 2 (5th Cir. 1980) 

64. ESCObedO V Illinois, 378 US 478, 490-491, 84 set 1758, 
1765(1964) 

65. Massiah V U.S., 377 US 201, 206, 84 SCt 1199, 1203 (1964) 

66. Barfield v Alabama, 552 F2(j 1114, 1118 (5th Cir. 1977) 

67. U.S. vLisenby, 716 F2(j 1355, 1359 (11th Cir. 1983) 

68. U.S. vMOSChiano, 695 F2cl 236, 241 (7th Cir. 1982) 

69. Clonk V state, ind. Ct. App., 1st Dlst, 1/11/83 

70. New York v Ouarles, _ US _, 104 set 2626, 2633 (1984) 

71. U.S. V wade, 388 us at 236-237, 87 SCt at 1937 

72. EStelle V Smith, 451 US at 470-471, 101 SCt at 1877 

73. Simmons V U.S., 390 US 377, 390, 394, 88 SCt 967, 974, 
976(1968) 

74. State V Holland, 98 Wash.2d 507, 656 P2d 1056, 1063- 
1064 (Wash. 1983) 

75. state V Davis, 82 wash.2d 790, 514 P2d 149, 151 (Wash. 

1973) 

76. De Luna V U.S., 308 F2d 140, 154 (5th Cir. 1962) 

77. Griffin v California, 380 US 609, 615, 85 SCt 1229, 1233 
(1965) 



216 



Chapter 14 



THE SQUEEZE 




- 217 



"...society is entitled to every man's evidence... 
Limitations are properly placed upon the oper- 
ation of this general principle only to the very 
limited extent that permitting a refusal to 
testify or excluding relevant evidence has a 
public good transcending the normal predomi- 
nant principle of utilizing all rational means for 
ascertaining truth." 

Justice Felix Frankfurter dissenting in Rios v U.S. 
and Elkins V U.S., 364 US 206, 234, 80 set 1431, 
1454(1960) 



Detective work can accomplish a great deal for the 
police, but there's a point, particularly in conspiracy and 
organized crime cases, where the cops need somebody 
who will name names and tell secrets. Many cases, in fact, 
would be unsolvable without a snitch to roll over and 
"turn State's evidence." Whether he's the one who 
initially brings a case to their attention, or merely 
provides them with information or testimony during 
subsequent phases of investigation and prosecution, the 
snitch is an invaluable tool of the cops. Rare is the pris- 
oner whose prosecution didn't involve at least one of 
them somewhere along the line. 

It occasionally happens, however, that a person who 
has useful information also has a measure of integrity as 
well; despite their usual "good citizenship" appeals, he 
refuses to become a rat for the cops. Morally speaking, 
this is a person's rightful prerogative. He's fundamentally 
entitled to his own personality and conscience, and his 
primary obligation is to be true to himself. If his personal 
code dictates that he not betray a friend (or a stranger, 
for that matter) it should be his decision to make. Legally 
speaking, however, this is not the case. The government 
couldn't care less about a person's Integrity, his con- 
science, or his personal interests. Its sole concern is to 



219 



maintain control, and at both state and federal levels 
there are well-developed systems of laws designed to 
rob the individual of his free will and force him to per- 
form at the government's bidding. 

By either verbal order or written subpoena, a court 
can order a person to testify or submit personal papers 
into evidence.^ If he refuses outright the court can hold 
him in "civil contempt," which means that he goes 
straight to jail and stays there until he decides to be 
good and talk.^ in the case of a federal grand jury, that 
might be up to eighteen months because that's how long 
each jury term lasts. Assuming that they're still inter- 
ested in his testimony, he doesn't get off the hook when 
the term ends; they simply empanel a new jury, and if 
the person still refuses to talk it's back to the pokey 
again. 

One thing about civil contempt is that the person 
being held under it can get out at any time by giving up 
and agreeing to talk - in fact, that's the whole idea. If 
the judge gets really pissed-of f , though, he can hold the 
witness in "criminal contempt" and give him a fixed 
prison sentence, perhaps as much as five years. That's 
only likely to happen if the fellow repeatedly snubs the 
court's orders, makes a scene in the courtroom, or offers 
impertinent suggestions of novel places for the judge to 
store his gaveLV 

As we've learned in the last two chapters, a person has 
a constitutional right to refuse to incriminate himself, 
and this operates very well as an excuse not to testify 
or present papers. When one does so, however. It doesn't 
necessarily put an end to the matter, what it does is 
force the police to decide which they want more - the 
witness' testimony or his conviction, if the answer is the 
latter they're stuck with his silence, and they'll have to 
do the best they can to convict him on the basis of in- 
dependent evidence, if they opt for the testimony, how- 
ever, they can overrule his use of the Fifth by granting 
him immunity from prosecution. 



- 220 



It often occurs that the cops stand to get the goods 
on a more important crime figure, or perhaps several of 
them, if they can put the squeeze on one key witness, in 
such cases it's worth the risk of losing a conviction of the 
witness in order to get the "bigger fish." What the feds 
do is offer the witness "use and derivative use immun- 
ity," or simply "use immunity," concerning his testim- 
ony.5 This means that his testimony can never be used in 
any way against him in an American criminal prosecu- 
tion. Even other evidence, which is later revealed 
because of leads from the Immunized testimony, is 
barred from such use. This use immunity is purported to 
be a substitute for Fifth Amendment protection, but as 
we'll see later. It's a preposterous fraud and hardly 
equivalent to the right of silence. 

Some state laws provide for a still broader form of 
protection called "transactional immunity," which 
guarantees that the witness won't be prosecuted for 
the crimes he testifies about.^ No such assurance accom- 
panies a grant of use immunity, which only guarantees 
the witness that his own testimony won't be turned 
against him.' Whether immunity is granted by state or 
federal authority, it's supposed to be recognized by the 
courts of both jurisdictions.8/^ The feds, however, are 
likely to recognize only the federal minimum extent of 
immunity (i.e. use immunity) when greater degrees of 
protection have been promised by a state. V" 

Only the prosecutor can offer a grant of immunity to 
a witness; the judge can't do it, and the witness can't 
invoke it for himself.^V" This is so because it's really 
nothing but a device of the police; they can employ it 
when they need to extract testimony to use against 
someone, but they don't have to offer it when it doesn't 
serve their interests. Thus, a defendant will usually be 
out of luck if he needs the testimony of a recalcitrant 
witness in order to support his defense; a prosecutor 
isn't likely to extend a grant of immunity in order to help 
out the defendant."/"/^' 



- 221 



use immunity is touted by the government as being a 
fair substitute for the citizen's Fifth Amendment right 
against seif-incrimination/s but in truth it's one of the 
biggest iies that's ever been foisted upon the American 
pubiic. Use immunity isn't even an adequate guarantee 
that the witness' own testimony won't be used against 
him, because it's often a simpie matter for the cops to 
use it as ieads to other evidence, which they can ciaim 
to have found through "independent poiice wori<." They 
probabiy have a thousand ways of setting up such 
scenarios. 

Apart from the prospect of police misconduct, how- 
ever, ail grants of immunity suffer from a fatal inade- 
quacy - they only provide protection against domestic 
criminal prosection. The government would ask us to 
pretend that an American criminal prosecution is the 
only harmful consequence that can come from testify- 
ing, and it just isn't so. There are a number of other con- 
sequences, some of them more of a threat than the 
government's prosecution, and none of them are pre- 
vented by these phony grants of immunity. 

First of all, immunity from a state or from the federal 
government isn't worth a plug nickel in the courts of 
other nations, yet any admissions that a person makes 
can be used by them as evidence. Defendants have 
attempted to use this point to argue against compelled 
testimony under the grant of immunity, but federal 
courts have held that, unless a given case presents (1) a 
real danger (i.e. possibility) of prosecution under foreign 
law, and (2) the fear (i.e. probability) that foreign 
prosecution will indeed follow, an immunized witness 
must talk.^V^' Where these foreign dangers are clearly 
demonstrable, however, a court might recognize the 
privilege of silence for spec/f/c questions before a grand 
jury, despite the extension of immunity .^^ 

Second, people who live in glass houses shouldn't 
throw stones,- one who has been snitched on is often in 
a pretty good position to dredge up a little dirt himself. 



222 



The use immunity statute prohibits the cops from talcing 
testimony from a person who has been fingered and 
then using it as evidence against the immunized snitch. 
It doesnt prevent the betrayed party from giving the 
cops all sorts of information and leads, however, which 
they can launder into usable evidence through "inde- 
pendent police work." The need for revenge is strong and 
once the snitching starts it isn't long before the snitches 
are in turn being snitched on by the snitchees.19 

Third, there's a danger to the physical safety of an 
informant (and his family) which no amount of Immunity 
can neutralize. Depending upon who the snitch offends, 
his chances of long-term survival can vary between good 
and zero,- governmental witness protection programs 
aren't all they're cracked up to be. it's impossible to 
measure the risk because it depends as much on the 
avenger's level of determination as it does on anything 
the snitch can do. The courts have naively held that, 
unless a witness is subjected to either (1 ) a specific threat 
or incident of violence, or (2) denial of some means of 
escape (such as police protection), the threat to his 
safety isn't sufficient to merit a privilege of silence.^o 
Generally speaking, the fear of reprisals isn't accepted by 
the courts as an excuse for not testifying^i... but then, 
what do they care? 

Fourth, a grant of immunity doesn't protect a person 
from the use of his testimony against him in professional 
disciplinary proceedings.^i To a lawyer, that might 
eventuate in disbarment - to a doctor, the loss of his 
license to practice medicine. After investing a fortune 
and the better part of one's lifetime in acquiring the 
training and experience necessary for such a career, it's 
no small consequence to have it suddenly foreclosed and 
be thus deprived of the means of earning a living. 

Fifth, a grant of immunity doesn't protect a person 
from the use of his testimony against him in a civil court 
action.22 jnus, a witness could find himself confronted by 
his own admissions in a liability suit, a divorce action, a 



223 



tax hearing, or some other civil proceeding after sup- 
posedly being "protected" by a grant of immunity. 

Sixth, religious convictions under currently established 
forms of belief haven't been recognized by the courts as 
constituting a justification for refusal to testify .^/^^ if a 
person's religious laws are broken or his spiritual sensibil- 
ities offended by being forced into the role of a Judas, 
it's just one more instance where the immunity statute 
doesn't measure up to the privilege of silence. 

Seventh, immunity from prosecution totally fails to 
insulate the witness from the infamy that he can suffer 
because of his testimony. A guy's family and friends are 
usually willing to give him the benefit of a doubt, but 
once he testifies and mal<es the admissions himself, even 
their loyalties can wear thin, iviost of the self-righteous 
hypocrites that make up society are inclined to believe 
the worst about a person anyway, so his admissions in 
testimony merely confirm what they'd suspected all 
along. Nevertheless, the added burden of opprobrium 
and prejudice can cause unnecessary hardships in many 
spheres of everyday life,- social acceptance, job opportun- 
ities, and union membership are only a few of such areas 
that are likely to be adversely affected.^^ There's reason 
to believe that the authors of the Constitution intended 
to prevent this when they drafted the Fifth Amend- 
ment,26 but judicial statists have unfortunately managed 
to erode away most of our protections against infamy. 

Lastly, a grant of immunity can never restore a 
person's dignity and self-respect — qualities which he 
necessarily sacrifices when he becomes a snitch. What- 
ever euphemism he may apply to the role - witness, 
informant, spy, police auxiliary - he's still the lowest 
form of scum in the lake of humanity, if he's so lacking 
of integrity and manhood that he can't appreciate that 
fact, then he's truly suited to the role, and will never be 
troubled by the realization of what he is. For a person 
who lives by his conscience and personal integrity. 



224 



however, the unwilling compulsion to give testimony 
can be a devastating assault upon the personality. 



"As for that Oath that was put upon me, I did 
refuse to take it as a sinful and unlawful oath, 
and by the strength of my cod enabling me, I 
will never take it, though I be pulled in pieces by 
wild horses, as the ancient Christians were by 
the bloody tyrants of the Primitive Church." 

John Lilburn, The Trial of Lilburn and Wharton, 3 
Howell's State Trials 1315, 1332 (1637) 

In John Lilburn's time, the Court of Star Chamber was 
the inquisitional body by which the government ex- 
tracted confessions and Information from English citi- 
zens; the royal judges ran the show, and the "oath ex 
officio" was the procedural tool that was used to legally 
force people to talk. Witnesses would be given the oath, 
subjected to all lines of inquiry, and ultimately found 
guilty of one thing or another on the basis of their own 
testimony.27 in our time, here In the united States, the 
grand jury has taken over this role,- prosecutors call the 
shots now, and the grant of Immunity has taken the 
place of the oath ex officio, but in effect we see pretty 
much the same grim picture that seventeenth-century 
Englishmen saw - a tribunal which is unhindered by the 
requirements of due process and discretlonarlly run by 
power-hungry bureaucrats, with the wherewithal to 
coerce people Into talking against their wishes. 

The grand jury hasn't always been a tool of the State;28 
early on in the history of this country it served to pro- 
tect the rights of the individual by insulating him from 
arbitrary prosecution, it was a panel of Impartial citizens 
which stood between prosecutor and suspect in order to 
pass judgment on the sufficiency of grounds for a 
criminal prosecution, its purpose was to protect the 



225 



individual from police harassment and ensure that he 
wouldn't be jeopardized by unfounded charges from 
personal enemies or an overreaching prosecutor. 

Thanks to judicial and legislative legerdemain, the 
grand jury has long since ceased to be the friend of the 
individual, and instead operates today as an instrument 
of the police, unaware of their independent power and 
responsibility, grand jurors are programmed to blandly 
go along with whatever the prosecutor tells them, 
rubber-stamping his proposals like so many smiling 
robots, instead of sitting for the purpose of judging the 
sufficiency of the prosecutor's case, the grand jury sits 
now to legitimize a form of interrogation by which the 
cops flush out new evidence against a suspect by extort- 
ing people's testimony under threat of imprisonment. 

Briefly, it works like thiS: Folks who are suspected of 
knowing something useful are commanded to appear be- 
fore the grand jury and give testimony. If they don't 
show up, or if they refuse to testify, they're cited for 
civil contempt and thrown into jail until they decide to 
cooperate. If a witness takes the Fifth, the prosecutor 
grants him use immunity, thereby extinguishing his right 
to be silent. Refusal to answer, a pretense of forgetful- 
ness, or any response other than a straight answer will 
then be grounds for a contempt citation and jail, if he 
gets caught in a lie it constitutes the felony of perjury, 
which also means prison. Any way you look at it, it's 
either snitch or the slammer. 

unlike a trial, where evidence must meet standards of 
"competency" and "materiality" in order to be heard, the 
grand jury is an evidentiary free-for-all.» competency is 
a quality of testimony which attaches by virtue of 
having come from firsthand knowledge; it also assumes 
that the Constitution wasn't violated in the process of 
getting it.'° Roughly, it stands for the reliability of the 
evidence. In grand jury proceedings all sorts of Incompe- 
tent evidence can be thrown in by the prosecutor: tid- 
bits acquired through violations of the Fourth^^ and 



226 



Fifth" Amendments... even statements elicited by 
torture." They don't even need to inquire into the 
validity of their sources of evidence.'* iviateriaiity is the 
tendency of evidence to establish some fact at issue in 
a case. Roughly, it stands for the importance or necessity 
of a given piece of evidence, in grand jury proceedings, 
materiality issues, such as the question of whether a 
given piece of testimony is necessary, impose no restrict- 
ion on the freedom of the prosecutor; virtually anything 
is admissible." on top of everything else, they don't even 
allow a witness' lawyer to be in the grand jury room 
during his testimony." When they put the squeeze on, 
they try to make sure that the sucker doesn't get an 
even break. 

With such an elaborate scheme worked out, and all the 
guns on their side, it would appear unlikely that a person 
could defeat it in a head-on encounter. Indeed, once a 
witness is sworn in and given immunity, there are only 
a couple of exceptions that can be claimed. One of these 
is the communications privilege for confidential disclos- 
ures that have been made to the witness by his spouse, 
his legal client, or his patient, it has been possible for the 
cops to defeat this gambit, too,- an affidavit of immunity 
indemnifying the wife can be issued in order to compel 
a husband to relate disclosures she made to him in 
confidence." 

Another exception is when the cops have used illegal 
electronic surveillance in order to get the basis for their 
line of inquiry." Once it becomes evident from their 
questions that they've been doing a little shady wire- 
tapping, the witness can refuse to give any more testi- 
mony. He must actually allege that a violation has oc- 
curred, however, and should be able to substantiate his 
charge; merely questioning whether it may have hap- 
pened isn't good enough." The next step for the cops in 
such a case, assuming that they want to deny the 
charge, is to go collect affidavits from the twenty-odd 
government agencies that might have had spooks out in 
the field planting bugs and doing wiretaps. Unlikely as it 



227 



is that any of them will admit to being guilty, an 
adequate Inquiry into the matter is the least that's re- 
quired of the cops in order to refute the charge.*" In the 
meantime, the grand jury has to be put on "hold," and 
there remains the possibility that proof of illegal surveil- 
lance will turn up and vindicate the witness' claim, it can 
definitely put a stick into their spol<es for at least a little 
while. 

Of course, if a potential witness is judged to be 
mentally incompetent to testify, the prosecutor can't 
bring him before the grand jury in the first place. In- 
competence means more than just having psychiatric 
problems; if the mere presence of a mental defect auto- 
matically rendered a person incompetent, the govern- 
ment would never be able to get a single politician be- 
fore the grand jury. Actually, there's no correlation 
between the issues of mental disease and legal ef f icacy."*^ 
Even a lunatic confined to a mental institution can 
legally be a competent witness,«V*' and so can somebody 
who's on drugs.** it isn't really necessary for a person to 
even have an understanding of the proceedings he's 
testifying at.*^ All these considerations are within the 
scope of responsibility of the jurors to assess as to 
credibHity and the amount of weight to be given to the 
testimony. 

Competency, on the other hand, is a threshold deter- 
mination that the court has to malce before a witness 
can even be allowed to appear.*V*^ It's based upon a 
three-fold set of conclusions drawn by an appointed 
psychologist who has thoroughly examined the witness. 
The questions which must be answered are the follow- 
ing: (1) Does the witness have sufficient understanding 
to realize the obligation of taking an oath? (2) is he 
capable of giving a correct account of things which he 
has seen or heard? And, (3) will his physical or mental 
health be imperiled by compelling him to testify? The 
first two questions explore concerns about the ability of 
the witness to tell the truth, while the third one con- 



228 



templates the likelihood that compeiling him to testify 
might inspire him to commit suicide. 

The psychological examination that a person might 
typically be subjected to for the determination of com- 
petency consists of three parts: (1) psychological testing, 
(2) the psychologist-witness interview, and (3) the 
psychologist's interviews with the witness' relatives, 
counsel, the prosecutor, etc.^^ 

Psychological testing involves all those little games 
and multiple-choice questionnaires that are supposed to 
reveal how one's mind works, it typically includes the 
Rorschach ink blot test, the Thematic Apperception Test 
(TAT), the wechsler Adult Intelligence Scale (WAIS) I.Q. 
test, the iviinnesota iviultiphasic Personality inventory 
(MMPI) test, the four sentence completion test, and the 
house-tree-person test. 

The most critical part of the examination is probably 
the psychologist's personal interview. These guys watch 
everything, and they note how the subject's initial 
reactions compare with those later on in the interview. 
People who really are "incompetent" don't tend to get 
better in their performance and sociability as the 
interview progresses, whereas those who are faking or 
just a little squirrely tend to loosen up, relax, and gen- 
erally improve after a while. The psychologist takes note 
of his subject's alertness and general affect as well as his 
responsiveness to questioning and sense of humor. He 
sizes up the witness' overall appearance of health, and 
attempts to assess how well his memory functions. 

There are a number of ways in which people have 
w/Buccessfully tried to avoid having to testify before 
the grand jury, some of which have already been men- 
tioned. Being the very measures that most people tend 
to think of first, they deserve to be summarized here in 
order to emphasize their uselessness. 

First of all, the rules of evidence and due process don't 
carry any weight before a grand jury. Things like the 
adequacy or competency of evidence and the Improper 

- 229 - 



constitution of the jury are therefore useless as the basis 
of a chaiienge to subpoena.*V*^ 

Second, the fear of danger from reprisals is not an ac- 
ceptable excuse for avoiding an order to testify .^V*^ The 
cops figure that their protection is an adequate remedy 
for such concerns. 

Religious views, while guaranteed under the First 
Amendment, have been recognized in this context only 
to the extent of justifying temporary postponement of 
grand jury testimony, as when it must be rescheduled so 
as not to take place on a holy day.*^ Those who have 
tried to excuse themselves altogether on the basis of 
religious convictions have not been successful »/2« 

Medical unfitness is likewise only useful as a means of 
delaying the testimony. Even then, however, it's neces- 
sary that the medical advice which the witness is relying 
upon is (1) not categorically wrong, and (2) is similar to 
advice which might be popularly available from other 
doctors. The courts take a dim view of sham medical 
excuses.5° 

The convenient "inability to remember" is generally 
recognized as a lame excuse, and not worthy of belief .^^ 
Perjury, of course, is a crime by itself; the courts don't 
condone it as a means of avoiding the obligation to tell 
the truth, even when confusion arises because of lang- 
uage difficulties and misunderstandings.^^ When a wit- 
ness perjures himself out of fear which is based on a 
specific threat or incident, or on the failure of the police 
to afford protection, it might be a defensible offense,- 
but a general fear for one's safety doesn't justify an act 
of perjury .20 



REFERENCES 

1. JenckS V U.S., 353 US 657, 668-669, 77 SCt 1007, 1013 
(1957) 



- 230 



2. Title 28 U.S.C. Section 1826 

3. Green V U.S., 356 US 165, 183, 78 SCt 632, 643 (1958) 

4. U.S. vBrummitt, 665 F2d 521, 526-527 (5th Cir. 1981) 

5. Title 18 U.S.C. Sections 6001 et seq. 

6. Crochulski v Henderson, 637 F2d 50, 52 (2(J Cir. 1980) 

7. U.S. VROCCO, 587 F2d 144, 147 n. 9 (3d Cir. 1978) 

8. In re Bianchi, 542 F2d 98, 101 (1st Cir. 1976) 

9. Murphy V Waterfront Commission of New York Har- 
bor, 378 us 52, 79, 84 SCt 1594, 1609 (1964) 

10. U.S. V Ouatermain, 467 FSupp 782, 788 (E.D. Pa. 1979) 

^A. inre Daley, 549 F2d 469, 479-480 (7th Cir. 1977) 

12. as. vLenz, 616 F2d 960, 962 (6th Cir. 1980) 

13. U.S. V TheviS, 665 F2d 616, 639-640 (5th Cir. 1982) 

1 4. in re Kilgo, 484 F2d 1 21 5, 1 222 (4th Cir. 1 973) 

15. Kastigar V U.S., 406 US 441, 461-462, 92 SCt 1653, 1665- 
1666(1972) 

16. In re Quinn, 525 F2d 222, 223 (1st Cir. 1975) 

17. U.S. V Yanagita, 552 F2d 940, 947 (2d Cir. 1977) 

18. Mishlma vu.s, 507 FSupp 131, 135 (D. Alaska 1981) 

19. us. V Ouatermain, 467 FSupp at 789 

20. US vHOUSand, 550 F2d 818, 824-825 (2d Cir. 1977) 

21 . In re Kilgo, 484 F2d at 1 221 

22. us vCappettO, 502 F2d 1351, 1359 (7th Cir. 1974) 

23. U.S. V Martin, 525 F2d 703, 710 n. 11 (2d Cir. 1975) 

24. US VHUSS, 482 F2d 38, 51 (2d Cir. 1973) 

25. Ullman VUS, 350 US 422, 430-431, 76 SCt 497, 502 (1956) 

26. id., 350 US at 449-454, 76 SCt at 512-515, J. Douglas 
dissenting 

27. Harris, Richard, Freedom Spent, Little, Brown & Co., 

Boston, 1976, pp. 350-355 

28. Wright, Federal Practice and Procedure: Criminal 2d 
Section 101 

29. COStellO V U.S., 350 US 359, 364, 76 SCt 406, 409 (1956) 



231 



30. 31 CJ.S. Evidence, Section 2; 31 A C.J.S. Evidence, 
Sections 186-187 

31. U.S. V Calandra, 414 US 338, 354, 94 set 613, 623 (1974) 

32. U.S. vBlue, 384 US 251, 254-255, 86 SCt 1416, 1419 (1966) 

33. In re Weir, 495 F2d 879, 881 (9th Cir. 1974) 

34. Lawn V U.S., 355 us 339, 348-350, 78 SCt 311, 317-318 
(1958) 

35. In re Kllgo, 484 F2d at 1 21 8, 1 21 9 

36. US V MandUjano, 425 US 564, 581, 96 SCt 1768, 1779 
(1976) 

37. In re Snoonlan, 502 F2d 110, 112 (1st Cir. 1974) 

38. Celbard V US, 408 us 41, 46, 92 SCt 2357, 2360 (1972) 

39. In re MlllOW, 529 F2d 770, 774-775 (2d Cir. 1976) 

40. in re Quinn, 525 F2d at 224-226 

41. In re Loughran, 276 FSupp 393, 416 (CD. Cal. 1967) 

42. /of. at 429 

43. Shuler V Walnwright, 491 F2d 1213, 1223 (5th Cir. 1974) 

44. us V Banks, 520 F2d 627, 631 (7th Cir. 1975) 

45. US VBenn, 476 F2d 1127, 1130 (U.S.App. D.C. 1973) 

46. US V calandra, 414 US at 344-345, 94 SCt at 618 

47. us V Fitch, 472 F2d 548, 549 (9th Cir. 1973) 

48. US V Patrick, 542 F2d 381, 388 (7th Cir. 1976) 

49. SmilOW V US., 465 F2d 802, 804 (2d Cir. 1972) 

50. US VLansky, 496 F2d 1063, 1071-1072 (5th Cir. 1974) 

51. Langella v Commissioner of corrections. State of New 

York, 545 F2d 818, 823 (2d Cir. 1976) 

52. as. V Wong, 431 us 174, 176, 180, 97 SCt 1823, 1824- 
1825,1827(1977) 



232 



Partly 



FACTS OF UFE 



Chapter 15 



DIRTY TRICKS 




- 235 - 



"Loose talk about war against crime too easily 
infuses the administration of justice with the 
psychology and morals of war... Of course 
criminal prosecution is more than a game. But 
in any event it should not be deemed to be a 
dirty game in which 'the dirty business' of 
criminals is out-witted by 'the dirty business' of 
law officers." 

Justice Felix Frankfurter dissenting in on Lee v 
US, 343 us 747, 758, 72 SCt 967, 974 (1952) 



It comes as a natural expectation that, if the govern- 
ment is going to preach morality through its laws, it 
should exemplify those same moral principles in its own 
dealings. After all, what's good for the goose is good for 
the gander. Much of this expectation arises from the 
popular notion that the government is fundamentally 
good, a misconception that's grafted onto our minds 
from early childhood. Having absorbed enough James 
Bond-C-lvian-Texas Ranger-war hero stories, a person can 
begin to believe that the only thing separating him from 
sudden death at the hands of thugs and foreigners is his 
trusty government. The faith in government is further 
cemented by the impact of its many programs upon our 
daily lives. Perils are presumably everywhere, so we need 
a legion of bureaucratic agencies to watch out for us — 
ones like the F.D.A., H.U.D., and F.D.I.C. If you lose your job, 
the unemployment agency finds you another one and 
pays you a stipend in the meantime, if you can't work for 
some reason, the welfare agency comes to the rescue. 
When you retire, the Social Security Administration kicks 
out some cash every month while Medicare pays the 
doctor bills. What a wonderful, maternal institution our 
government is! Surely Mother wouldn't lie or cheat, 
would she? 



237 



You'd better believe she would. As we discussed in 
Chapters 1-4, the criminal justice system is an economic 
enterprise, not a charity devoted to good works. Those 
who fill its ranl<s seriously believe that they're pursuing 
a career in a legitimate profession, and they approach 
their work with the same competitive spirit that the 
businessman approaches his. Instead of measuring 
success in terms of sales volume, however, cops measure 
it in numbers of busts, and prosecutors in terms of con- 
viction rates. Like the businessman, the cop strives for 
results; how he gets them is often of little concern to 
him. 

This Is an important point to realize because cops don't 
feel the need to follow the same rules that apply to 
everyone else. For the very reason that cops are its ser- 
vants, the government has given them extraordinary 
powers and privileges - license to do things that would 
be crimes if done by anybody else. Within broad limits 
they're permitted to ignore standard concepts of fair- 
ness, official regulations,^ and even statutes.^ 

They enjoy this generous freedom of action because 
the decision-makers - the legislators and judges - have 
decided that catching lawbreakers is more important 
than maintaining a code of integrity. They don't see the 
System as a game of chess with the cops being check- 
mated for failing to play by the rules, and the outlaw 
going free as a reward for winning.^ As Supreme Court 
Chief Justice Warren Burger has confessed, "the sporting 
theory of criminal justice... has been experiencing a 
decline in our jurisprudence.'"* Instead, the government 
views the law breaker as a threat to its authority, hence 
its existence, and that merits top priority action. The 
government would prefer to keep Its image of honor 
and fairness in the eyes of the public, but not at the cost 
of losing authority. At the same time, it must temper its 
aspirations of absolute control with enough restraint to 
avoid shocking the public "conscience" and thereby 
destroying its credibility.^ in seeking to strike this 
balance, the government has drawn those constitutional 



- 238 



limits tliat we've discussed in previous chapters and has 
carved out the permissible limits for the "dirty tricks" 
which are discussed in this chapter. 

"Dirty tricks" is a general term referring to techniques 
of deception - the tools of the spy and the con man. For 
purposes of the discussion at hand, it's useful to consider 
them as falling into three basic categories, according to 
whether they impinge on Fourth Amendment, Fifth 
Amendment, or Due Process rights. 



THE RUSE 

"Some trickery is here. Trojans, do not trust in 
the horse. Whatever it may be, I fear the Creeks, 
even when they bring gifts." 

Virgil, TheAeneid: Book II, lines 68-70 (19 B.C.) 

in order to defeat a suspect's legitimate expectation 
of privacy, which is ordinarily protected by the Fourth 
Amendment, the police frequently find it helpful to 
create ruses. A ruse is some sort of false pretense which 
is calculated to fool the suspect into willingly giving his 
consent to something. The idea is to create a cordial, or 
at least neutral, atmosphere of openness and trust. Such 
an ambience would usually be impossible if the suspect 
knew that he were dealing with the cops, so they mas- 
querade as passers-by, customers, or even partners-in- 
crime, in order to gain acceptance. Thus disguised, they 
gain access to places and events which would never have 
been open to them otherwise - and it's all done without 
a fight. 

The most commonly used ruse is the undercover 
agent. He might be a cop who's on a specific assignment 
to infiltrate a criminal enterprise, or just a local stool 
pigeon who keeps his eyes and ears open for the police. 



239 



sometimes the cops use ordinary citizens as decoys in 
their ruses « especiaiiy junlcies, people who've been bust- 
ed, guys with a score to settie, and poiice groupies. The 
decoy sucks the suspect in because of his authenticity as 
a user of drugs or whatever other type of iilegai goods 
or services the cops are after. Typicaiiy, the decoy wiii 
get the suspect to do the deai in the presence of an 
undercover cop so the testimonial evidence wiii hoid up 
better in court. Since cops tend to have an authoritative 
bearing about them that they find difficult to hide, 
they're usually cast into the role of dealer, hit man, or 
other macho-type character. 

The most elaborate ruses are the "sting" type opera- 
tions which have been fashionable in recent years. 
They're based on the "big store" concept that was 
developed by the great American con artists of the early 
I900's and depicted in the movie The Sting. An illegal 
enterprise is set up and staffed by undercover cops who 
continue to run the business over a prolonged period of 
time under the guise of being outlaws. All the time, how- 
ever, they're developing records on the real outlaws who 
do business with them, and making movies and sound 
recordings of the transactions using hidden equipment. 
Fencing operations for stolen goods and bribery setups 
lend themselves well to such methods. Because of the 
extensive police involvement in the illegal activities that 
constitute these decoy and sting operations, there arises 
a question of whether they violate a person's due pro- 
cess rights under the Fifth Amendment; this will be dealt 
with below under the discussion of entrapment. 

Many ruses are conducted simply to get inside the 
suspect's place in order to look around. The cops might 
suspect that evidence of some crime is present there, 
but without probable cause they can't legally force their 
way in. If they think the suspect might be likely to refuse 
them admittance as police, and probably destroy any 
evidence that he has inside, they'll conduct a ruse in or- 
der to trick their way in without letting on that they're 
cops. They might pose as prospective land buyers check- 



240 



ing out the area, or perhaps as a motorist whose car has 
broken down and who needs to use the telephone to call 
for a mechanic. Once they get Inside under such pre- 
tenses, anything they see In plain view becomes probable 
cause for them to get a search warrant, if the situation 
appears to be an exigency, they can go ahead and make 
the bust right there on the spot. 

The cops are sometimes treading on thin Ice with 
these ruses, because if they get too aggressive the 
courts are likely to declare a Fourth Amendment viola- 
tion and apply the exclusionary rule in favor of the sus- 
pect. The Supreme Court ruled long ago that the police 
can't use fraud in order to get Into a person's place for 
the purpose of conducting a warrantless search? If they 
just "happen" to see the evidence in plain view while 
masquerading under false pretenses, that's okay; rifling 
the drawers, however, is verboten. Similarly, the use of 
either moral or legal compulsion in a ruse is likely to be 
regarded by the courts as a Fourth Amendment viola- 
tion.8 Moral compulsion, for example, exists when sym- 
pathy is invoked for a person who's suffering and in need 
of help.9 Legal compulsion occurs when a cop falsely 
claims to have a valid search warrant, or pretends to be 
a gas company employee looking for a dangerous gas 
leak.8 These kinds of ruses represent such compelling de- 
mands that no person would be reasonably Justified in 
refusing them, and are therefore usually impermissible. 
The role of lover, however, is a fully permissible ruse, and 
cops have successfully exploited their suspects' romantic 
weaknesses on many occasions.i°/^i 

Some ruses are conducted for the purpose of manip- 
ulating the suspect's behavior rather than Invading his 
privacy. An example of this would be the techniques that 
airport cops use to cajole a suspect Into waiting around 
while they develop the legal justification to arrest him. 
Since they can legally detain his luggage, they'll seize It 
and offer to provide him with a receipt for It. Or, if he 
doesn't have an ID card, they'll offer to run off a 
computer printout for him to use as identification. The 



241 



offers of a receipt or an ID are ruses,- they seem to be 
favors furnished for the suspect's benefit, but they're 
actually an attempt to lure him into a back office and 
delay his departure.^^ 



THE PRETEXT 

"HOW easy a thing it is to find a staff if a man 
be minded to beat a dog." 

Thomas Becon, Early Works.- Preface (1563) 

Another type of dirty trick that the cops will play in 
order to beat the rules is to act on pretext Unlike a ruse, 
a pretext doesn't depend upon the development of 
cordiality. It's nothing more nor less than a circumstance 
which is created to serve as an excuse for something 
else. They don't attempt to fool the suspect as to their 
identity because they don't need his consent. The 
pretext provides all the legal justification they need for 
what they do. 

A common example of a pretext is the use of a local 
"stop and identify" ordinance. As we've discussed in 
Chapter 8, it's unconstitutional for the cops to stop 
people on the street and roust them for no reason. 
Sometimes they just don't like the looks of a person, 
however, and feel sure that they'd find something to 
charge him with if only they could shake him down. For 
this reason, some cities have enacted ordinances which 
entitle the cops to stop people on the street and de- 
mand proof of their identity. The cops can use the 
ordinance as a pretext in several ways. They scrutinize 
the suspect for anything suspicious while he's fumbling 
around after his ID, occasionally being thereby able to 
spot the bulge of a weapon, contraband, or suspicious 
behavior which will serve as justification for a frisk. 



242 - 



Having gotten an ID of some kind, they can then kill some 
more time running It through a computer check (If they 
have that capability at their disposal). Should the ID 
appear to be Irregular, or if the computer check shows 
something wrong, they can run the suspect In and do 
their routine field and inventory searches In the process. 
If the person doesn't have an ID, the ordinance gives 
them an excuse to run him In for that. One way or 
another, they're probably going to get to do their 
search, which was the real purpose for all these she- 
nanigans. 

Another pretext Is the old planned-incldent-to-lawful- 
arrest search, which is usually used to find contraband. 
As will be recalled from Chapter 7, the police can search 
anywhere within reach of a person who's being arrested, 
and that includes his car or the entire room he happens 
to be In. Thus, if they suspect that a person might be 
likely to store contraband In a particular place, they'll 
plan a pretextual arrest to take place there In order to 
get an excuse to search It. If they already have cause to 
arrest, all they have to do Is wait until the suspect gets 
Into his car, or goes into his house, and then make the 
bust. " If they're after someone In particular but haven't 
been able to get the goods on him, sometimes they can 
dig up an outstanding arrest warrant on him for an old 
traffic violation,^* failure to pay child support," or some 
other penny ante charge. They'll hang onto the warrant 
like a gambling marker, then "cash It In" when they see 
the suspect go Into his car or his house, depending on 
where they think they'll find the evidence they're 
looking for. 

Although they're supposed to confine their search- 
incldent-to-lawful-arrest to the room In which they 
make the arrest, the cops can get around that rule by 
means of another pretext - claiming that they fear 
there may be armed accomplices In other rooms-^V" 
That justifies them In going through the whole building, 
looking for the Imaginary accomplices wherever they 
could be hiding, and casing the place out for evidence in 



243 - 



"plain view" all the while. What it boils down to is a free 
general search. 

Creating an exigency is another pretext that the 
police can use in order to get around the warrant re- 
quirement. Used in combination with the incident-to- 
lawful-arrest trick, it can be every bit as effective as a 
planned police raid - only they don't need the warrant, 
if the cops are after a dope distributor, for example, 
they can bait a junl<ie into unknowingly making a pur- 
chase from him with marked bills which they've supplied, 
then bust the junkie while still in the supplier's neighbor- 
hood. The exigency that has thus been created warrants 
an immediate arrest of the distributor, since it's assumed 
that he's bound to learn of his customer's arrest within 
minutes and attempt to destroy all the evidence, in- 
cident to the arrest, of course, they get to do the search 
which turns up more dope and the marked bills. Busting 
the junkie in the supplier's immediate vicinity thus serves 
as a pretext for the emergency arrest and incident 
search of the supplier's 

Although the presence of a search warrant presum- 
ably confers a dimension of fairness to a search, it too 
can be adulterated by means of a pretext. An affidavit 
based upon an informant's testimony is sufficient 
probable cause to justify the issuance of a search war- 
rant, if an unscrupulous cop should find some low-life 
willing to lie for him in the affidavit, he'd have himself 
a custom-made search warrant. Even if it could be 
proven that the claims in the affidavit were lies, the war- 
rant would still be legal unless it could also be proven 
that the cop himself was involved in the lie.'* That, of 
course, would never happen because the informant 
would become impossible to locate, and the cop would 
deny any knowledge of a lie. Thus, the fraudulent affi- 
davit serves as the pretext to legally carry out a search 
that should never have been permitted. 

Another way that the police can manipulate a search 
warrant through pretext is by having it specify some- 



- 244 - 



thing tiny as one of the objects of the search.20 This gives 
them an excuse to pry into every jar and rat hole, no 
matter how small, it is, In other words, a pretext for con- 
ducting the sort of general search that the warrant re- 
quirement is supposed to prevent. 

Sometimes it's useful for the police to separate a sus- 
pect from his family during the investigative phase,- 
gullible family and friends will often give up incriminat- 
ing evidence more readily when the suspect isn't around. 
This can be accomplished by getting him out of town on 
the pretext of some examination, such as a polygraph 
test. While the old man's gone, the cops can go over to 
his house and flim-flam his family into giving them 
evidence that they would otherwise have needed a war- 
rant for.2i 

Not to be forgotten in our discussion of pretexts is the 
anonymous tip. Since the police eagerly solicit reports 
from the good citizens of the community regarding 
suspicious things they see, it isn't at all unusual for them 
to receive anonymous letters and telephone calls. A cop 
in the field can capitalize on this by sending in his own 
anonymous "citizen report" telling the central office 
anything he wants them to believe. Headquarters will 
then relay such "information" to officers in the field and 
advise them to make the appropriate investigation. 

This technique is useful whenever the cops need to 
shake somebody down but don't have just cause to do 
so. Suppose that, by way of an illegal entry or wiretap, 
they learn that a suspect has possession of a large cache 
of drugs. They can't use such information as grounds for 
a search warrant, but it does tell them that a search 
would yield results. All they need is the justification to 
make the search, it's a simple enough matter to write an 
anonymous note describing the information and send it 
in to the police station as though it came from some 
dutiful citizen. With the inclusion of a few easily confirm- 
able details, the note can be corroborated by some 
cursory police observations and thus rise to the level of 



245 



probable cause - it becomes the basis for a legal search 
warrant." 

Similarly, if they suspect that a guy is holding drugs, 
but don't have justification to search him, they can get 
their justification by means of a quick anonymous phone 
call to the station. They merely describe their suspect, 
tell his location, and allege that he's carrying a concealed 
gun. Still maintaining visual contact of him, the cops will 
be all set to shake their suspect down when the bulletin 
comes back over the radio." 

Pretexts represent an attempt by the officer to cir- 
cumvent the lawful procedures that he's sworn to 
uphold, and are therefore looked upon by the courts 
with greater disapproval than are ruses, which merely 
seek to fool the suspect, it's pretty difficult to prove 
that a cop has used a pretext, however, so it usually 
succeeds in its intended purpose. 



DECEITFUL ACQUISITION OF STATEMENTS 

"I, under fair pretence of friendly ends 

And well-plac'd words of glozing courtesy 

Baited with reasons not unplausible, 

Wind me into the easy-hearted man, 

And hug him into snares." 

John Milton, Comus, line 160 (1634) 

Just as they use dirty tricks to compromise a person's 
Fourth Amendment rights, so do they use them in get- 
ting around the Fifth. Most commonly it's a simple 
matter of exploiting people's misplaced confidence. The 
family and friends of an arrestee are often made the 
unwitting tools of the prosecutor by virtue of their 
naive hopes of leniency and willingness to believe in the 
fairness of the System. More often than is realized, a wily 



246 



interrogator can successfully con his suspects loved ones 
into using their influence to coax an admission (or even 
a confession) from the addled fellow. Remember, it's not 
a constitutional violation for family or friends to "inter- 
rogate" a suspect after he has invoked his right to have 
counsel present.^^ 

The probation or parole officer has a unique opportun- 
ity to take advantage of misplaced confidence, since 
many of his charges are likely to believe that they some- 
how owe him their candor. This sense of responsibility is 
likely to be even greater among those probationers and 
parolees who are enrolled in a special rehabilitation pro- 
gram, since they perceive their freedom to be conting- 
ent upon their fullest level of cooperation. The officer is 
thus in a position to trick his wards into making confi- 
dential disclosures to him which he can turn around and 
submit to the police as evidence toward new charges.^^ 

In addition to the use of confidence, the cops can em- 
ploy conversational tricks which are calculated to entice 
careless statements from a suspect's mouth, iviany of 
these have been disclosed in Chapter 13 under the 
discussion of interrogation techniques. Seemingly insig- 
nificant statements can sometimes be as damaging as 
admissions,26/" and since everything a suspect says to 
the cops is recorded, it behooves them to provoke such 
statements whenever they can. Little comments which 
imply a knowledge of facts in a crime, or remarks sug- 
gesting a suspect's awareness of his rights and obliga- 
tions, are often useful to the prosecution when it wants 
to apply legal technicalities against him later, such as his 
waiver of various rights.^^ 

If their little attempts to bait comments fall, and it ap- 
pears that they might come up without any material at 
all, they'll sometimes salvage a benefit from deliberately 
violating the l\/liranda Rule. Even though statements 
which a person makes as a result of such a violation are 
inadmissible as evidence, they can be used to impeach his 
testimony. Thus, if the cops can badger a suspect into 



247 



losing his temper and mal<ing a few incuipatory remari<s, 
they can hold it over his head in order to prevent him 
from tai<ing the stand in his own defense.^^ 

Probably the most egregious dirty tricl< of all in the 
Fifth Amendment context is the manipulation of the 
grand jury by the prosecution in order to turn it into an 
investigative tool, in a way, it's really a form of pretext 
by which a suspect's friends and relatives can be forced 
to inform on him - something which would be impos- 
sible by any other legitimate means. It's nothing less 
than an abuse which has been made legal for the exclu- 
sive benefit of the government. 



ENTRAPMENT 

"Artifice and stratagem may be employed to 
catch those engaged in criminal enterprises." 

Chief Justice Charles Evans Hughes, Sorrells v 

U.S., 287 US 435, 441, 53 SCt 210, 212 (1932) 

There's a great deal of talk these days about "police en- 
trapment," but most people have little understanding of 
what it means, common sense suggests that it would be 
"entrapment" for the cops to represent themselves as 
lawbreakers in order to conduct an illegal undertaking by 
which they entice suspects to become partisans in the 
crime. Many people would even say that any police in- 
volvement in an illegal enterprise amounts to entrap- 
ment. These notions represent popularly held ideas of 
fairness, but they ofon'f accurately state the law. 

The concept of entrapment is based upon the idea 
that the government shouldn't induce innocent folks to 
commit crimes.'° The "Innocence" of the suspect is the 
key consideration. Obviously, if he's caught taking part in 
an illegal operation he isn't one hundred percent inno- 



- 248 



cent, but whether or not he did the crime is not the 
question here, it's accepted from the outset that the 
suspect brol<e the iaw; it's the factors which caused }n\m 
to do so that must be identified. 

The law recognizes only three possibilities: either (1) 
the police cause the suspect to participate in the crime 
by planting the idea in his head and then goading him 
into it; (2) the suspect steps in on his own initiative, but 
the cops take such an active role that they virtually 
commit the crime for him,- or (3) the suspect enters on 
his own initiative and utilizes the facilities and opportun- 
ities furnished by the police to commit a crime. The first 
situation is "entrapment," the second is "outrageous 
government involvement," and the third is tough luck. 

It's usually impossible to prove to a certainty that the 
police did or did not put the idea of crime into a suspect's 
head. Therefore, it's customary to allow a jury to decide 
this question based upon facts.^^ The predisposition of 
the suspect to commit the particular crime in question 
is the main focus of attention, in a drug case the lack of 
predisposition might be suggested by such things as: (1) 
the absence of any effort to profit from the drug 
business, (2) the absence of other evidence of trafficking, 
(3) hesitancy to become involved, (4) an effort to kick the 
drug habit, and (5) the oldness or absence of prior drug 
convictions." These kinds of facts tend to suggest that 
the suspect was not prone to commit the crime, and 
that the cops may have created it themselves. The lack 
of predisposition is the threshold condition that must be 
satisfied in order for a suspect to claim the defense of 
entrapment." 

once that's been established, the degree of police in- 
volvement can be considered in order to determine 
whether or not entrapment did indeed occur, if we're 
considering a drug case, clues as to the extent of police 
involvement might be revealed by such conduct as: (1) 
the inducement of the suspect to return to using drugs, 
(2) the use of threats, repeated begging, or other forms 



- 249 - 



of pressure to get him to do the crime, (3) appealing to 
his sympathy by feigning withdrawal symptoms, (4) 
originating the idea for the crime, (5) supplying facilities, 
labor, raw materials, equipment, capital, or the dope 
itself, (6) providing all the customers, and (7) the instiga- 
tion of other arrests which are suggestive of entrap- 
ment.50/" A suspect can thus establish the conventional 
"subjective" entrapment defense by showing that (1) he 
was not predisposed toward committing the crime, and 
(2) the cops came along and made him do it. 

It's important to realize that, when a person is pulled 
into an entrapment setup by somebody who isn't 
connected with the police, he technically hasn't been en- 
trapped. Such an unfortunate twist of fate is known as 
"derivative entrapment," and it generally leaves the 
suspect without any right to make use of the entrap- 
ment defense-'V® 

Some of the Supreme Court Justices have recognized 
the possibility of a second type of defense based upon 
an intolerable level of government involvement in an 
entrapment-type setup, even though the suspect is 
predisposed to committing the crime and therefore 
ineligible for the conventional entrapment defense. They 
call it the "objective," "outrageous government involve- 
ment," or "fundamental fairness" defense. Basically, it's 
for cases where the cops are extremely pushy and 
heavily involved in the creation of the crime. Those 
F=ederal Circuits where it's been recognized include the 
Second (Connecticut, New York and Vermont)," Third 
(Delaware, New Jersey and Pennsylvania),'^ pifth (Louisi- 
ana, l\/lississippi and Texas),'^ and Ninth (Alaska, Arizona, 
California, Hawaii, Idaho, iviontana, Nevada, Oregon and 
Washington).'^ it isn't often that anyone gets acquitted 
in federal court on the basis of the "outrageous involve- 
ment" defense, but it's gaining wider acceptance in the 
state courts, and enjoys a strong following in legal 
academic circles.^° in at least one Instance, a minimally 
involved suspect who was the victim of derivative en- 



250 



trapment was allowed to use this defense in lieu of the 
entrapment defense, to which he wasn't entitled.'^ 

There's no constitutional right to be free of entrap- 
ment.«V*2 jhe legal reasoning behind the defenses of 
entrapment and outrageous government involvement is 
based upon a clause in the Fifth Amendment which says 
that no person shall "be deprived of life, liberty, or 
property, without due process of law." This "due process 
clause" imposes the obligation of a fundamental stand- 
ard of fairness upon the operation of the law,- it makes 
the police answerable to a universal sense of justice. 
Granted, it's a sense of justice conceived by judges and 
other hypocrites, but it nevertheless does set a limit to 
the extent of police l<navery. The cops are permitted to 
trap suspects, but not to entrap them. They're given a 
broad margin of freedom in which to play sneaky tricks 
and set up all manner of ambushes, but they're not 
allowed to create crime and drive the innocent into it. As 
Justice Rehnquist put it, "Congress could not have in- 
tended criminal punishment for a defendant who has 
committed all the elements of a proscribed offense but 
was induced to commit them by the government."*' 



REFERENCES 

1. U.S. VCaceres, 440 us 741, 757, 99 set 1465, 1474 (1979), 
J. iviarshall dissenting 

2. Scott V U.S., 436 us 128, 143-144, 98 SCt 1717, 1726- 

1727 (1978), J. Brennan dissenting 

3. MCCuire V U.S., 273 US 95, 99, 47 SCt 259, 60 (1927) 

4. Brewer v Williams, 430 US 387, 417, 97 SCt 1232, 1248 
(1977), C. J. Burger dissenting 

5. Roschin V California, 342 US 165, 169, 72 SCt 205, 208 
(1952) 

6. Benson v California, 336 F2d 791 , 792, 797 (9th Cir. 1 964) 



251 



7. COUled V U.S., 255 us 298, 305-306, 41 SCt 261, 263-264 
(1921) 

8. Cuidry V State, 671 P2d 1277, 1281 (Alaska 1983) 

9. Pascu V State, 577 P2d 1064, 1067-1068 (Alaska 1978) 

10. as. VHinkle, 637 F2d 1154, 1158-1159 (7th CIr. 1981) 

11. U.S V Carreon, 626 F2d 528, 535 (7th CIr. 1980) 

12. U.S V wallraff, 705 F2d 980, 986 (8th Cir. 1983) 

13. New York V Belton, 453 US 454, 470, 101 SCt 2860, 2869 

(1981), J. Brennan dissenting 

14. People vHoHoway, Michigan Sup. Ct, 12/23/82 

15. People V Zimmerman, N.Y. Sup. Ct, Suffolk City, 1/14/ 
83 

16. as. V Baker, 577 F2d 1 147, 1152 (4th Cir. 1978) 

17. as V Gardner, 627 F2d 906, 909-910 (9th Cir. 1980) 

18. as. V Santana, 427 us 38, 48-49, 96 SCt 2406, 2412 

(1976), J. Marshall dissenting 

19. Franks v Delaware 438 US 154, 171, 98 SCt 2674, 2684 
(1978) 

20. Harris V U.S., 331 US 145, 188-189, 67 SCt 1098, 1116 
(1947), J. Murphy dissenting 

21. Coolidge v New Hampshire, 403 US 443, 446, 91 SCt 
2022,2027(1971) 

22. Illinois V Gates, 462 US_, 103 SCt 2317, 2325-2326 (1983) 

23. as. vn/iason, d.c. ct. App., 9/9/82 

24. Taylor V Alabama 457 US 687, 102 SCt 2664, 2668 (1982) 

25. Minnesota vi\/iurphy,_[}S, _i03SCtii36,ii40-ii4i 
(1984) 

26. Franks v Delaware 438 US at 156-157, 98 SCt at 2677 

27. as V Jimenez, 602 F2d 139, 141 (7th CIr. 1979) 

28. as V Thomas, 729 F2d 120 (2d cir. 1984) 

29. Harris vNew York, 401 US 222, 224-225, 91 SCt 643, 645 
(1971) 

- 252 - 



30. Sherman VU.S., 356 US 369, 372-374, 78 SCt 819, 821-822 
(1958) 

31. Id, 356 US at 380, 78 SCt at 824 

32. Id, 356 US at 375-376, 78 SCt at 822 

33. U.S. V Russell, 411 US 423, 436, 93 SCt 1637, 1645 (1973) 

34. Greene VU.S., 454 F2(J 783, 786-787 (9th Cir. 1971) 

35. U.S. V Shapiro, 669 F2d 593, 597-598 (9th Cir. 1982) 

36. U.S. V Twigg, 588 F2(J 373, 381-382 (3d Cir. 1978) 

37. U.S. V Archer, 484 F2d 670, 676-677 (2d Cir. 1973) 

38. U.S. V Oquendo, 490 F2d 161, 163 (5th Cir. 1974) 

39. US V Wylie, 625 F2d 1371, 1377 (9th Cir. 1980) 

40. US. V Twigg, 588 F2d at 383 n. 3 

41. US. V Russell, 411 us at 430, 93 SCt at 1642 

42. Jones vBombeck, 375 F2d 737, 738 (3d Cir. 1967) 

43. US. V Russell, 411 us at 435, 93 SCt at 1644 



253 



Chapter 16 



THE AIRPORT 




- 255 - 



"With increasing recurrence, we have consider- 
ed the delicate balance which must be struck 
between the Interest of the public in terminat- 
ing narcotics smuggling and the Individual's 
right to live unburdened by unreasonable 
intrusions on his privacy as we are called upon 
to assess the constitutionality of a warrantless 
"Investigatory stop" of domestic air passengers 
by Drug Enforcement Administration agents 
struggling to stem the flood of dangerous 
drugs." 

Judge Irving R. Kaufman, U.S. v Ramlrez- 
Cifuentes, 682 F2d 337, 338 (2d CIr. 1982) 

If you've ever been observant while passing through 
an airport, you've probably noticed the Impassive- 
looking gentlemen in the J.C. Penney suits. They loiter 
about as though waiting for a bus, when In fact they're 
really waiting around to "make a bust." These detectives 
have created a profession out of snooping on travelers 
in the hope of ferreting out those who are secretly en- 
gaged in Illegal activities. Today's highly mobile society 
and the travel demands of the free enterprise system 
have made the airport their Ideal pool in which to "go 
fishing." 

Though far from being their only quarry, the drug 
trafficker has proven to be the police's best customer at 
the airport. So cozy Is this relationship that the Drug En- 
forcement Administration (D.E.A.) has compiled a whole 
list of characteristics just to detect possible traffickers 
- the so-called "drug courier profile." Most of the 
features on the profile are totally innocent by them- 
selves, and easily fit many ordinary travelers who pass 
through the airport. Several features together, how- 
ever, are unlikely to be seen In the ordinary passenger. 
The feds know from experience that, once they spot a 
person who conforms to several of the points on their 
profile, they will usually find drugs in his possession. 



257 - 



In order to exploit the use of as many auxiliary eyes 
and ears as possible, federal officers educate airline em- 
ployees^ and train officials^ in the use of the profile. 
Some of the things that an agent would ordinarily miss 
are thus brought to light by a diligent ticket clerk or an 
attentive skycap. The profile used by such functionaries, 
however, is necessarily brief and simplistic, it will be 
more informative to consider the profile from the view- 
point of the narcotics agent, for whom it may be 
thought to exist in two stages: the initial impression and 
the investigation. 



THE INITIAL IMPRESSION 

Any psychologist will tell you that a wealth of inform- 
ation about a person can be had simply by watching him. 
The narcotics agent gains his initial impression by 
observing the appearance and behavior of the travelers. 
Of course, he pays special attention to those arriving on 
flights at off-peak hours,' and particularly those coming 
from "drug source cities," where couriers are likely to 
have picked up a load. Some of the principal "distribution 
centers" include Los Angeles, San Diego, El Paso, Miami, Ft. 
Lauderdale, San Juan, Chicago, Detroit, and New York. 
When such a flight comes into one of the other large 
metropolitan airports, there must certainly be a mag- 
ically charged atmosphere akin to the Christmas Eve vigil 
of small children waiting up for Santa Claus. 

Features of the general appearance that are typical 
for drug couriers include membership in the 25- to 35- 
year-old age group,'' being a black female,^ being of a 
racial extraction different from most of the people on 
the f light,« and traveling aione.^ Clothing that's inappro- 
priate for the weather^ or for the particular flight^ is a 
red flag to the narcotics agent; casual dress on a 3 p.m. 
businessman's flight, where everyone else is wearing a 
business suit, will quickly raise eyebrows. A distinctive 



- 258 - 



piece of clothing, such as a colorful coat, will occasionally 
set off alarms when agents elsewhere have previously 
become interested in that individual and reported his 
description among their ranks.^ A similar situation occurs 
when agents who have watched a person depart see him 
return the next day wearing the same clothes.V^ Carry- 
ing a shoulder bag is another point on the profile,^ 
particularly if it's untagged, or if two traveling compan- 
ions both carry them.^o unusual bulges or distortions of 
body shapes suggest contraband to even untrained eyes. 

A person's luggage also constitutes part of his appear- 
ance, and there are several aspects that will render it 
suspicious to inquisitive police. Being without luggage al- 
together," or having only a limited amount of It on a 
long trip that's supposed to be a vacation,^ Is a major tip- 
off. Suitcases that are noticeably empty^ tend to catch 
the attention of the baggage clerks. New" or especially 
heavy-looking luggage (like American TouristerH is also 
an eyecatcher, as are those tiny padlocks that some 
people put on their suitcases." They may keep the lids 
from accidentally popping, but they also tend to set a 
nark's imagination popping. The way luggage is tagged is 
very significant,- untagged pieces" or tags that are 
marked with only a last name and city of destination 
(instead of the complete set of information called forH 
often betray their illegal contents. 

There are many characteristic modes of behavior that 
the drug agents look for, beginning immediately with 
the sequence of deplaning. Couriers are typically among 
the f irsr« or the last^° to disembark, and it's particularly 
curious when one of the first and one of the last are 
later noted to be traveling companions.^ Those who are 
traveling together often create an intrigue about it that 
gives them away. They may converse freely with one 
another outside the terminal, then separate and ignore 
each other once they come inside, conducting their 
limited conversations there in whispers.^" There's a 
characteristic fashion of "single file progression" fre- 
quently seen, where one courier follows the other from 



259 



several paces behind, always stopping and starting in 
concert with the leader.i° Answering in his behalf one 
moment and avoiding him the next Is another form of 
this repudiatory behavior of one courier with another." 
The signalled nod,^^ of course, is a conspiratorial cliche 
that's familiar to anyone who's ever watched a George 
Raft movie. 

By far and away, nervousness is the most important 
behavioral sign. Knowing that you're carrying a pound of 
colce right past The Man's nose is lilcely to make you a 
little jumpy, no matter how "cool" you are. Most couriers 
are sufficiently lacking in savoir faire that, even without 
police provocation, they'll exhibit some degree of 
hesitancy, cautiousness, or furtiveness." "Scanning" 
behavior is easily spotted from afar, particularly when 
the person looks behind him over his shoulder. It's usually 
evident as the subject looks all around upon entering the 
terminal, sometimes even slowing down the flow of 
pedestrian traffic in his futile effort to spot police sur- 
veillance before it spots him.^^ Apprehensive people 
often "scan" as they enter or exit from a vehicle.^e just 
being overly conscious of nearby people is a recognizable 
sign of nervousness,^^ but looking directly at the agents, 
or worse - playing mutual-surveillance "cat and mouse" 
games with them - is an open invitation to official in- 
quiry.i« 

Haste is a common ingredient, and is often evidenced 
by a person's fast pace^* or by his dash to leave the ter- 
minal directly upon arrival.^ An initially slow pace which 
subsequently quickens is similarly suspicious.^^ Acts of 
desperation, such as hailing a taxi in the rain rather than 
waiting in the sheltered taxi stand,^^ blatantly advertises 
a trafficker's anxiety to get away quickly. Most couriers 
are not met by anyone at the airport,^ and consequently 
tend to make a beeline for the phone upon arrival,^^ 
often making several calls.^ 

Time-killing is likely to arouse the suspicion of police 
when a person walks at a conspicuously slow pace.^^ 

- 260 - 



repeatedly stops at water fountains," goes into rest- 
rooms without using the facilities," hangs around the 
magazine stand without looking at the wares,i° or waits 
at the baggage carousel without picking up any lug- 
gage.^^ if he shows special care in handling one of his bags 
compared with the others, that too is noteworthy." Of 
course, the most suspicious behavior of all is seen when 
a subject resorts to deliberate evasive action." 

Some profile matches are hustled to the attention of 
the narcotics agent by dutiful airline employees, as 
already mentioned. Such tips are often the only intro- 
ductory clues to a fruitful "bust," and are therefore a 
significant part of the agent's initial impression. A 
customer can expect to get some scrutiny if he pur- 
chases his ticket at the desk;^ when he does so immed- 
iately prior to departure,' or even on the same day," It's 
certain to be noticed by some would-be gendarme. 
Paying in cash,^^ especially from a large roll of billss of 
small denomination^^ or large denomination" is said to 
be highly characteristic. Since drug couriers often 
change flights en-route in the mistaken notion that they 
are thereby shaking off surveillance," ticket agents turn 
this tactic against them by immediately reporting such 
requests. 



THE INVESTIGATION 

Once a detective has picked up enough suspicious 
signals from his initial impression of a traveler, he'll feel 
justified to poke his nose into the matter a little further 
by making a few inquiries. This is the second, or investi- 
gative, phase of the profile, it usually begins when the 
agent saunters up to his quarry with an authoritative 
flash of the credentials and requests permission to "ask 
a few questions." Knowing that most people with 
something to hide will immediately become uneasy 
when they are thus singled out, he looks for all the little 



261 



signs of nervousness that might confirm his suspicions: 
the trembly, fidgeting fingers... the averted gaze... the 
pale, sweaty forehead... the squeaky, stammering voice. 

He will ask for two things initially: proof of identifi- 
cation (i.e. a driver's license) and the airline ticket. Lack of 
suitable ID,^^ or a discrepancy between the name on the 
card and the one on the ticket^^ suggests that the 
suspect is traveling under an alias in typical courier form. 
With the ticket in his hand, the agent can readily see two 
important sources of information: the passenger's 
itinerary and the baggage claims. He wants to see the 
itinerary because couriers often buy one-way tickets^^ 
for trips of short duration (usually with only a one-day 
layover),^ and take peculiar routes. An itinerary going 
from Greensboro, N.C. to Los Angeles, then to Raleigh, N.C. 
the next day might be one such odyssey.' A flight from 
Los Angeles to New Orleans by the circuitous way of St. 
Louis might be another.^^ He's interested in the baggage 
claims (which are usually stapled to the ticker folder) 
because (1) the lack of baggage claims fits the profile,^! 
(2) if the suspect has removed and concealed them he's 
probably fearful of being associated with that luggage, 
and (3) once the agent gets the claim numbers he can go 
look at the luggage. 

Armed with the names from the ID and the ticket, 
Sherlock can now get a full read-out from the airline 
computer on recent flights made, telephone numbers 
given, and whether the customer did indeed check in lug- 
gage. The phone numbers can be verified to see if they 
are phony^^ or suggest an illegal enterprise,^ and the 
names can be run through police computers to find out 
if the suspect is a known trafficker^" or otherwise of 
Interest to the authorities. Thanks to the wondrous 
silicon chip, this can all be done within minutes - indeed, 
it's often done prior to even approaching the suspect 
when an agent has learned his name from a helpful ticket 
clerk. 



262 



At this point the agent will either be satisfied that the 
passenger's "clean" and let him be on his way, or he'll be 
suspicious enough to press the investigation. The useful- 
ness of the drug courier profile is essentially over once 
there's a serious intent to investigate. Its role is basically 
to steer the policeman in the direction of an investiga- 
tion that will have more probability of paying off, and 
at the same time give him the legal excuse to pry into 
the affairs of a citizen who's minding his own business. 
The Supreme Court has declared that, before the police 
may stop and interrogate a person, they have to be able 
to say exactly what it is about him that suggests that 
he may be breaking the law. This requirement for the 
existence of reasonable articulable suspicion is one of our 
few protections against arbitrary police harassment.^^ 
The mere preference of a person to dress casually and 
carry a shoulder bag on a flight out of LA. doesn't justify 
a grilling by the cops; having been alerted by these in- 
nocent hallmarl<s, however, they might acquire their 
justification after watching him act out some cloak-and- 
dagger routine. 

Let's assume, for the sake of illustration, that our 
agent has singled out a Ms. Coca White, who's been 
glancing furtively from side to side since getting off her 
flight from iviiami. Feeling meddlesome and having 
nothing better to do, he'll tell her that he's looking for 
drugs and has reason to believe that she's carrying them. 
If she wasn't unsettled by the initial approach of a nar- 
cotics agent, a guilty person would certainly start 
sweating at that statement. Self-conscious at being put 
on the spot, she's more likely to trip up as she attempts 
to dissemble, and her clumsy, evasive answers will 
achieve only more suspicion.V"/2° Then Sherlock makes 
his move for the jugular - he asks for her consent to a 
search. With the perspiration starting to run down her 
forehead, her panty hose suddenly feeling uncomfort- 
ably tight, and sensing that everyone in the airport must 
be watching, it's easy for poor Coca to overlook the 
import of that request. Any hesitatton to agree is swiftly 



263 



met with the warning that "a warrant can be gotten." 
If Ms. White Is like most people, she'll reluctantly consent, 
even knowing that there are drugs In her luggage.^^ She's 
even likely to accept It as a kindness when the agent of- 
fers to escort her to a room where the bags may be 
searched In privacy. Coca's lack of knowledge about the 
process and about her constitutional rights has seen her 
voluntarily place herself Into police custody while she 
proceeds to hand them the rope to hang her with. 

In the event that a person (wisely) refuses to consent 
to the search, police have the authority to temporarily 
detain the luggage while they "investigate" further.25 
They might try passing it through the fluoroscope, or 
subjecting It to sniffing by trained dogs," but nothing 
they can do to It will give them the right to open it up 
without a search warrant. V^* While there's no fixed time 
limit on how long they may hold a person's luggage 
during one of these "limited Investigations," the United 
States Supreme Court has recently ruled that 90 minutes 
is definitely too long." The likelihood of getting a 
warrant that quickly is often slim. The officer needs hard 
facts, such as a positive dog-sniff test, an Inside tip from 
a reliable Informant, or a whole panoply of very suspi- 
cious observations. In order to justify to a magistrate 
that he has probable cause to believe there are drugs in 
the baggage. Assuming that he can come up with his 
probable cause at all, he's then faced with the formidable 
challenge of finding out which country club His Honor is 
hiding at, and hoping that he'll be sober enough to come 
to the telephone once he's finally located. Moreover, 
some state laws don't even provide for search warrants 
over the telephone,^ and the agent may well end up 
filling out affidavits and waiting for three or four days 
before he gets his warrantee 

Having failed to wheedle the suspect out of his con- 
sent to a search, the agent's hope of lawfully hanging 
onto him lies partly In the chance that he can be duped 
into waiting around for his luggage. The suspect will be 
coaxed into going along to an "office" somewhere,^^ or 



264 



perhaps invited to join In on the chase as the police 
scurry around to establish their probable cause.^' Even if 
he insists on completing his flight, however, a suspect is 
under full police control;^^ he won't be getting off until 
the plane lands, and by that time a warranted search of 
his luggage might be done and a reception party ar- 
ranged for him. 

What the police fear most in such a situation is that 
their suspect will promptly leave the airport and become 
unavailable for their prosecution efforts. Under the law, 
that's precisely what the citizen is entitled to do.^s unless 
the police have probable cause to believe he's in some 
stage of committing a crime, they're not allowed to 
arrest him. They can "detain" him temporarily while they 
asl< their questions and punch their computer buttons to 
see if he's wanted for anything, but on the sole basis of 
a few suspicious observations, they're not justified in 
making an arrest. The matches with their profile only 
serve to give them a reasonable articulable suspicion 
that something fishy is going on. it gives them a legal 
justification to stop a person for questioning-^V^' With- 
out those suspicious little things that singled the person 
out for attention, they wouldn't have been justified in 
stopping him at all." Once they do, however, there's a 
limit on just how far they can go. 

Assuming that he has wisely behaved like a gentleman, 
the police are restricted to just asking questions. The 
theory is that anything suspicious-looking, short of an 
obvious red-handed crime, may well have a perfectly 
logical explanation. Once the citizen explains himself to 
their satisfaction, he's entitled to go on his way. 

it's critical to realize that a person doesn't have to 
answer the questions at aii.^a if his answers are uncon- 
vincing, or if he says or does something that raises more 
suspicion, that just gives the police the right to pursue 
the matter a little further.^e indeed, if the man asking 
the questions happens to be a federal officer, any little 
white lies that are told to him in an attempt to dispel his 



265 



suspicion can themselves be grounds for an arrest and 
convlctlon.'o it's a felony to lie to a federal agent, and It's 
amazing how quickly they can catch a person In a lie and 
thereby escalate an "Investigative detention" Into an 
arrest.'^ 

Unless the suspect gives them some solid facts to use 
against him, the police can't carry on a detention in- 
definitely; the American Law Institute (A.LI.) has recom- 
mended a maximum duration of 20 minutes for these 
stops." Most of the time they will be far shorter than 
that, but the important thing to realize is that the police 
must decide within this brief time period to either arrest 
the suspect or release him. If they don't have probable 
cause to mal<e an arrest (which means actually demon- 
strating the presence of drugs), the courier must be free 
to ieave.^8 

Naturally, the police will demand to see a reliable form 
of identification, such as a state driver's license, that will 
assure them of where they can nab the suspect later If 
they find drugs in his luggage. A person Isn't required by 
federal law to produce an ID when they ask for it,* v but 
failure to do so might result in his being followed and 
kept under surveillance when he leaves. Moreover, the 
act of giving police a convincing name and address makes 
it clear to them that the person expects his luggage to 
be returned after they are finished with it. It's critical to 
insist on a possessory right to the luggage because that's 
the only thing preventing the cops from opening it im- 
mediately; the moment they can show that It's been 
abandoned, they no longer need a search warrant.^" 

The smart courier faced with an "Investigative stop" 
would be truthful^ but taciturn, producing a valid ID 
(which would pass muster on a computer check), and 
politely refuse to consent to any form of search or de- 
tention. He would immediately seek to leave the airport 
instead of attempting to continue his flight. If the police 
Insisted on detaining his luggage, he would forcefully as- 
sert his ownership rights but promptly get himself away. 



266 



leaving them "holding the bag." Insisting on a search 
warrant would, in effect, buy him enough time to 
successfully do his disappearing act. A really shrewd 
fellow will have the goods safely stashed on his person 
instead of in his luggage anyway. Hopefully, after 
reading this chapter, the educated courier will probably 
never be confronted in the first place, since he will 
scrupulously avoid conforming with any of the indicia of 
the drug courier profile,- after all, an ounce of prevention 
is worth a pound of cocaine... 

This isn't the only such profile that's being used at the 
airport. During the sixties, when it was fashionable to hi- 
jack planes and take them to Cuba, the Federal Aviation 
Administration (F.a.a.) created a special "skyjacker 
profile" which was designed to identify potential sabo- 
teurs and air pirates. The government is far more fearful 
of terrorists than of drug traffickers, and has taken pains 
to avoid advertising what's on their skyjacker profile.'^ 
Nevertheless, common sense should suggest what its 
features would be, and its basic concept and the method 
of deployment, using airline personnel as auxiliaries, is 
the same as for the drug courier profile. A slight depart- 
ure in philosophy of the skyjacker profile from the 
courier profile is that, once they identify somebody they 
suspect of being a terrorist, they're probably not going 
to let him walk back out the door the way they would 
a courier. They don't want to give him the opportunity 
to come back later and try again, possibly with better 
success the next time.'^ 

Another list of characteristics which the police use at 
the airport, and one which has many features in common 
with the drug courier profile, is the "mule profile" used 
by Customs agents. A courier who smuggles drugs into 
the U.S. from another country is known as a "mule." Since 
a person's luggage is subjected to much more Customs 
scrutiny than his body, mules have learned to stash the 
stuff on their person in various ways. Packages can be 
taped to the body, but the bulky clothing that's needed 
to conceal them is in itself a tipoff to customs agents. 



- 267 



who can then expose it by conducting a strip search." A 
safer way of carrying smaii quantities of vaiuabie con- 
traband, such as heroin or cocaine, is to seai it within 
baiioons or condoms and "i<eyster-stash" it - siip it into 
the rectum and/or vagina. This wouid require the cops to 
conduct a body cavity search in order to find the drugs. 
Safer stiii, the drug baiioons can be swaliowed, and up to 
700 grams of merchandise can be transported at one 
time without being exposed to view.'s 

The internai techniques of transportation would be 
very difficult for Customs agents to detect, were it not 
for a pattern that's been demonstrated recently by 
South American "importers." They hire local peasants as 
mules, buy them plane tlcl<ets, and send them off to the 
U.S. with their bellies full of balloons. A number of 
features that are characteristic of these mules have 
been formulated by Customs into a profile. 

As with the drug courier profile, the source of a flight 
provides the first clue; one which is arriving from a drug 
source country, such as Colombia or Peru, is highly 
scrutinized.59 

Features of the general appearance are primarily those 
of a peasant, particularly one who has made a clumsy at- 
tempt to represent himself as being of a higher social 
class. Inability to speaic Englishes and evidence of low edu- 
cation, such as poor handwriting,<° are typical. A woman 
who has rough "worl<er's hands" is considered to be sus- 
pect when she sports a fresh manicure.^V*^ Exhibiting an 
excessively passive bearing and carrying only one small 
suitcase'^ are further features of the peasant-mule. 

Lil<e the domestic drug courier, a mule usually travels 
solo. This is particularly noticeable when it's a woman, 
since Latin women don't usually travel alone.^V''^ 

The mule's airline ticket has usually been purchased 
with cash, and since somebody else has gotten it for him, 
he doesn't l<now where or when it was bought, how 



268 



much it cost, or what means of payment was used.*'/''^ 
There's often a peculiar itinerary as weli, such as short 
flights to and from drug distribution cities.^i The pass- 
port often reflects other recent short trips to the U.S.^V 

44 

iviuies typicaliy carry about $1500 in U.S. currency, 
probabiy because that's their standard fee for the job,« 
and they iaci< the checics and credit cards that most in- 
ternational travelers carry to cover their expenses.^ 

Predominant in the mule proflle is a pathetic lack of 
plausibility concerning the visitor's plans.« customs 
agents savor this part of their interview in the same way 
that the D.E.A. agent does the investigatory phase of the 
drug courier proflle,- it's a great opportunity for them to 
belittle these people and toy with them while playing 
Sherlock Holmes. The name of the game is to see how 
badly they can discredit the traveler's cover story. 

Typically, the mules have no family or friends in the 
U.S., and have no Idea of where they're going to be 
staying.59 They often claim to be visiting the U.S. on 
business, and frequently hold themselves out to be pro- 
prietors who have come to purchase electronic equip- 
ment. Unfortunately, they usually know nothing about 
the business they're supposed to be in,«°/<i and carry no 
business cards or other professional paraphernalia.*°/*« 
They have little or no knowledge about the items 
they're supposed to be purchasing, where to shop for 
them, or how much it'll cost,- they usually don't have 
enough money to cover such purchases anyway.*" When 
asked how they plan to get around to do their buying, 
they generally say they plan to have taxis take them 
around.'>7 One fellow, who was supposed to be a Sony 
dealer, told the Customs agents that Sony and Toshiba 
products were made in America.''^ Another poor soul said 
that he planned to buy three or four Xerox color- 
copying machines with his $971 and bring them back to 
Colombia in his luggage."*^ 

- 269 - 



When a traveler's conformity to this profile leads the 
Customs agents to suspect that they might have a 
"swallower," they can exercise a much higher level of 
discretion in detaining and searching him than the police 
would have under similar circumstances on a domestic 
flight. The airport is the functional equivalent of the bor- 
der for flights arriving from outside the country, and 
once a person has landed on such a flight, he's irrevers- 
ibly committed to the power of the Customs agents 
until they decide to release him. He can't simply walk 
away like a domestic drug courier can. How long they can 
detain him, and how aggressive they'll get in looking for 
contraband, depends on what part of the country he's 
in and what grounds they have to search him. 

As was discussed in Chapter 8, the standards of reason- 
ableness for body searches at the border (or its airport 
equivalents) are: (1) frisk - no grounds are necessary,- (2) 
strip search - "reasonable articulable suspicion" is 
necessary (which is supplied when the suspect matches 
the mule profile); (3) X-ray of the abdomen - "clear 
indication" is necessary in the Ninth Circuit (which is not 
supplied by mere conformity to the mule profile), but 
only "reasonable articulable suspicion" is required in the 
Eleventh Circuit,- and (4) body cavity search - "clear 
indication" is necessary. It's obvious that a person is at 
greater risk of being asked to submit to an X-ray when 
he enters the country by one of the Eleventh Circuit 
states (Alabama, Florida or Georgia). What's more signif- 
icant, however, is that if he refuses to consent to an x- 
ray, he's likely to be chained up and watched for the next 
16 hours until he has passed the contents of his bowels. 
It's a whole different ball game from the "brief deten- 
tion" that the domestic traveler is subject to,- the 
suspected mule is forced to deliver up the evidence one 
way or another. Detention for such long periods of time 
on the basis of a mere profile match is considered 
reasonable in the Eleventh Circuit,'" but not in the Ninth 
Circuit (the West Coast).'^ 



- 270 - 



If it hasn't been made eminently clear from the fore- 
going, it's worth an encore to emphasize that the 
American airport is a high-surveillance place. From the 
moment you step out of your taxicab" there are critical 
eyes watching your every move. If they don't like what 
they see, you can be having your phone number checked 
out," your photograph taken, and a secret file made up 
on you while you're waiting In the termlnal.^^ They'll 
squeeze the air out of your suitcases in the back room 
to help the dogs get a good whiff of what's Inside,''^ and 
sometimes they'll even creep up behind you to give the 
dogs a smell of your bag as you sit with it in the lobby. 
It all sounds like the imaginings of a paranoid, but un- 
fortunately this is one dream that's too true to be good. 
Everything that's been said came from real-life dramas, 
where people who were only expecting to make a little 
trip ended up in prison. Think of these case citations as 
a reading list, and you'll see for yourself what can happen 
at an airport. 



REFERENCES 

1. as. V van Lewis, 556 F2d 385 (6th Cir. 1977) 

2. U.S. V ChadWiCk, 431 US 1, 97 set 2476 (1977) 

3. US VHill, 626 F2d 429 (5th Cir. 1980) 

4. Florida v Royer, 460 US _, 103 SCt 1319 (1983) 

5. US vn/ICCIain, 452 FSupp 195 (E.D. MICh. 1977) 

6. US VDiaz, 503 F2d 1025 (3d Cir. 1974) 

7. US V Smith, 574 F2d 882 (6th Cir. 1978) 

8. US. V Gooding, 695 F2d 78 (4th Cir. 1982) 

9. US vi\/iccaleb, 552 F2d 717 (6th cir. 1977) 

10. US V Forero-Rincon, 626 F2d 218 (2d Cir. 1980) 

11. as. vBaliard, 573 F2d 913 (5th cir. 1978) 

12. US V Suliivan, 625 F2d 13 (4th Cir. 1980) 



271 



13. as. y vasquez, 612 F2d 1338 (2cl Cir. 1979) 

14. as. V coins, 699 F2d 832 (6th Cir. 1983) 

15. as. U/WO/a, 704 F2d 337 (7th Cir. 1983) 

16. as. V Price, 599 F2d 494 (2d Cir. 1979) 

17. People vKiser, III. App. Ct, 1st Dlst, 3/21/83 

18. as V Mendenhall, 446 US 544, 100 SCt 1870 (1980) 

19. as VPope, 561 F2d 663 (6th Cir. 1977) 

20. as VBeCk, 598 F2d 497 (9th Cir. 1979) 

21. Terry v Ohio, 392 US 1, 88 SCt 1868 (1968) 

22. as vCanales, 572 F2d 1182 (6th Cir. 1978) 

23. as. V Place, 462 us _, 103 SCt 2637 (1983) 

24. Robblns V California, 453 US 420, 101 SCt 2841 (1981) 

25. state V Valencia, New Jersey Sup. Ct., 5/16/83 

26. as VJOdOin 672 F2d 232 (1st Cir. 1982) 

27. Reid V Georgia, 448 US 440, 100 SCt 2752 (1980) 

28. Coolidge v New Hampshire, 403 US 443, 91 SCt 2022 

(1971) 

29. Kolender V Lawson, _ US, _, 103 SCt 1855 (1983) 

30. Title 18 U.S.C. section lOOi 

31 . as. V Parten, 462 F2d 430 (5th Cir. 1 972) 

32. A.LI., A Model code of Pre-Arraignment Procedure, 
Sectionii0.2(i),i975 

33. Brown V Texas, 443 US 47, 99 SCt 2637 (1979) 

34. as V Toibert, 692 F2d 1041 (6th Cir. 1982) 

35. as VSeli, 464 F2d 667, 669-670 (2d Cir. 1972) 

36. as VSklpwith, 482 F2d 1272, 1281 (5th Cir. 1973) 

37. as. V vega-Barvo, 729 F2d 1341, 1345 (11th Cir. 1984) 

38. as. VPIno, 729 F2d 1357, 1359 (11th Cir. 1984) 

39. as. V de Hernandez, mhQWAQZa) 

40. as. V vega-Barvo, 729 F2d at 1 343 



272 



41. U.S. V Castaneaa-Castaneaa, 729 F2d 1360, 1362 (llth 
Cir.1984) 

42. U.S. vDeMontoya, 729 F2d 1369, 1370 (11th Cir. 1984) 

43. U.S. VPaania, 729 F2d 1367, 1368 (11th Cir. 1984) 

44. as. V Mosquera-Ramlrez, 729 F2d 1353, 1354 (llth Cir. 
1984) 

45. as. V vega-Barvo, 729 F2d at 1350 

46. as VPlno, 729 F2d at 1358 

47. as V Henao-Castano, 729 F2d 1364, 1366 (llth cir. 
1984) 

48. as V Mosquera-Ramirez, 729 F2d at 1355 

49. Sprowls V State, Florida Ct. App., 3d Dist., 6/28/83 

50. There is one lie that a person can (and should) tell a 
questioning federal agent,- when asked if he has com- 
mitted a crime (e.g. having drugs) a person should al- 
ways say "no." He cannot be convicted under 18 U.S.C. 
1001 for telling an exculpatory lie to a police investi- 
gator, as V Hajecate, 683 F2d 894, 899-900 (5th Cir. 
1982). 



273 - 



Chapter 17 



THE 
TEN COMMANDMENTS 




275 



"The wind sits in the shoulder of your sail, And 
you are stayed for. There - my blessing with 
thee, And these few precepts in thy memory 
Look thou character..." 

William Shakespeare, Hamlet, Act I, scene ill, lines 
56-59(1600) 



we've seen how the police can carry out search and 
seizure In order to get evidence of a crime, and how both 
the search and the seizure can be applied to the four 
basic areas of an Individual's privacy — the person, his 
property, his house, and his statements. A search of the 
person can be as minimal as a simple Inquiry, and can 
progress to a "frisk," a "field search," or more Intrusive 
physical measures such as body cavity searches, blood- 
drawing, and surgery. Similarly, the seizure can be a mere 
approach premised upon an "articulable basis," an 
intermediate Terry detention based on "reasonable 
articulable suspicion," an arrest based on "probable 
cause," or the seizure of some fluid or Item that's been 
extracted from the body. 

The scope of the search and seizure of personal pro- 
perty (generally speaking, an automobile) and of a house 
(or other building) depends primarily on the grounds for 
searching it — consent, warrant, or some exception to 
the warrant requirement. 

As with the person, search and seizure of somebody's 
statements can be of varying degrees of Intrusiveness. 
The "search" may be an electronic bugging or wiretap, 
the exploitation of an Informer, the reading of one's 
papers, the offer of an opportunity to talk, interro- 



277 



gation, or a court's subpoena. The seizure can be the 
acquisition of consent (for some intrusion), leads to new 
evidence or witnesses, statements that can be used for 
the impeachment of testimony, evidentiary statements, 
and confessions. 

The law has defined a regular crazy-quilt of limits and 
exceptions to these search-and-seizure intrusions, and it 
changes in little ways from one day to the next, much 
as a coastline does under the effects of wind and waves. 
Such changes don't prevent the mariner from navigating 
the coastline based upon a reasonable knowledge of 
where the shoals lie, and the same principle holds true 
for the citizen as he carries out his business over the 
treacherous reefs of the law. 

Without getting bogged down in the vagaries of local 
laws, it's possible to lay down some general axioms that 
will provide guidance for a person on his voyage through 
the reefs - "rules of thumb," so to speak, to keep the old 
tub floating safely in deep water. Now, it's far from this 
author's intention to recommend that anyone should 
intentionally break the law - heaven forbid! That would 
probably subject the author to about twenty federal 
charges and several hundred state charges (they have so 
damned many statutes on the books that they can find 
three or four of them to use against you for doing 
practically anything you can name). Knowing human 
nature as he does, however, the author recognizes that 
most people will run afoul of the law sooner or later in 
one way or another, and for some of them it will be 
sooner and more often. People in this category — the 
"outlaws" of society - will be especially benefitted by a 
written "code of conduct" which can help them avoid 
the System. The presentation of such a code, which is a 
distillation of the major constitutional truths that have 
been discussed in the previous chapters, is the object of 
this final chapter. The author judges no one, and hopes 
that whatever kind of mischief you're into, this set of 
guidelines will help you avoid the full fury of The Beast. 



278 



It's well at this point to interject a note of sobriety, 
because when people get to talking about "beating the 
System" and using "loopholes" it's all too easy to jump to 
the conclusion that, with a little finesse, anybody can 
breaic the law and get away with it. Young and unsophis- 
ticated criminals are frequently caught because they 
place their reliance on the likelihood that police will 
observe their constitutional rights. Sometimes the cops 
will stop short of an impermissible intrusion, but other 
times they won't,- and if their impermissible intrusion 
results in the discovery of criminal evidence, that 
suspect is in for a long struggle. The police realize that 
some of their busts will be thrown out of court, and that 
some of the ones that do get convicted will be over- 
turned on appeal. That doesn't bother them, though, 
because they know that the court system operates so 
slowly that, even if a person has sure-fire grounds for 
reversal, it'll take a couple of years for the conviction to 
be overturned. Meanwhile, the guy who thought "they 
can't do this" will be sitting in prison twiddling his 
thumbs. They've gotten him off the street for a while, 
caused him to lose a lot of money, and broken up what- 
ever game he had going - precisely what they wanted 
to do. 

For those who make their living by breaking one law 
or another, it's safe to predict that inevitably they're 
going to get caught and punished. As TV detective Tony 
Baretta used to say, "if you can't do the time, don't do 
the crime." This isn't a reflection of the great efficiency 
of the police; to the contrary, they're an indolent and 
stupid lot for the most part, what it does reflect is (1) 
the consequence of Murphy's Law: if anything can 
possibly go wrong, it probably will,- (2) the high chance of 
somebody becoming a snitch; and (3) the probability that 
the police will cross over the line of permissible conduct 
if they need to. As we've said earlier, they tend to stop 
playing by the rules when it looks as though they might 
lose the game. 



- 279 



The advice in this chapter, then, Is calculated to pro- 
vide you with the most accurate yet practical strategy 
for avoiding detection, frustrating apprehension, and 
minimizing penalties based on an understanding of your 
constitutional rights, if it helps you to escape detection 
altogether, "far out." if you're detected by the police but 
manage to slip through their fingers, "bravissimol" But in 
the event that the unthinl<able happens and you're 
caught, the attention that you've paid to the precepts 
in this chapter could pay off with the greatest dividends 
of all. It might mean the difference between your 
spending a few short weel<s in jail and spending the rest 
of your life in prison. No set of rules can guarantee that 
you'll never get caught, but if you consistently follow 
these you'll shift the odds immensely in your favor, and 
avoid making the needless mistakes which have resulted 
In the destruction of so many lives. 



Commandment I: 
BEAM^AREOFTHERULES 

Nobody can know it all, but a general familiarity with 
basic practical considerations should precede the opera- 
tion of any business or profession. A doctor or lawyer 
wouldn't hang out his shingle without first having 
prepared himself through the appropriate program of 
study. Neither should anyone presume to conduct an 
illegal enterprise without first educating himself in the 
technicalities of the field. Learning through error may be 
a fine method for the aspiring artist, but It's far too 
costly for the would-be outlaw. 

A. A general knowledge of criminal procedure is 
useful for anyone who may become a "guest" of 
the System. The material in this book is a good 
start, and if you can develop an occasional taste 
for text books about criminal law and evidence, 
you'll be far ahead of the pack. 



280 



An example of how this kind of l<nowledge can 
be practically applied is evident in the case of a 
warranted search. The magistrate who issues a 
warrant has no business participating in the 
search. Therefore, you should always take down 
the names of everyone present during a police 
search. Bystanders can be used later as witnesses 
to any constitutional violations, and if the magis- 
trate's name shows up on the list, the warrant 
becomes invalid. 

B. Know the state and federal laws concerning your 
particular type of business, in Michigan, for exam- 
ple, there's a mandatory life sentence for posses- 
sion of Schedule 2 drugs in quantities exceeding 
650 grams (22.88 oz.).^ The sensible cocaine dealer 
there would avoid the risk of incurring this maxi- 
mum penalty by simply making it a policy to never 
handle more than a pound at a time. At $300,000 
a pound, nobody but a large-scale importer would 
ever need to have more than that on hand any- 
way. 



Commandment II: 
DON'T ATTRACT AHENTION 

iviany people get into trouble with the law because 
they have an emotional hunger for self-esteem which 
they try to feed by showing the world what bad-asses 
they are. For them crime is a macho trip, and some of 
them aren't truly satisfied until they do get caught. 
Many others, whose sole motive for breaking the law is 
profit, make an attempt to be inconspicuous, but botch 
it through carelessness and lack of perception. What 
both these classes of people have in common is their 
tendency to attract the attention of the police, some- 
thing which is avoidable if a person will just think ahead 
and use common sense. 



281 



Avoid conforming to profiles. Whatever you're up 
to, a police Inquiry Isn't likely to do you any good. 
Since they often use police profiles as a means of 
selecting likely candidates for Inquiry, you should 
make a studied effort to avoid conforming to the 
Indicia as much as possible. 

1. At airports, wliile making domestic flights, 

a. Avoid flying 

I. from a "drug source city." 

II. at off-peak hours. 

III. on a round-trip ticket with a short layover. 

Iv. on a ticket with a peculiar itinerary. 

The Inconvenience and delay of taking a car or a 
bus from a source city to the nearest non-source 
city before boarding a plane could save you much 
more time In the long run. 

The ticket problem can be solved by always pur- 
chasing a round-trip ticket at the lowest rate 
possible (long layover). Cops are always suspicious 
of anyone who pays more for the short-layover 
tickets because a typical middle-class schmuck 
would rather stay a few days longer and save on 
the cost of his flight. You don't really need to stay, 
of course; you can get a refund on the unused 
portion of the round-trip ticket, and leave again 
whenever you want. If you do so, you should mail 
your ID ahead and register on your flight under a 
different name, because the airline computers are 
coordinated nation-wide, and such a change of 
itineraries would look suspicious if they should 
decide to check your recent flight record later. A 
bizarre itinerary should be broken up into a series 
of separate trips under separate names, while 
always exercising caution that no evidence of any 
other identity be on hand. 



282 



b. Avoid purchasing your tici<et 
i. at the ticl<et desk. 

ii. on the same day as the flight. 

iii. with cash (particulariy smaii biils). 

iv. changing flights enroute. 

Call for reservations on the telephone as much in 
advance as possible, and pay with a checl<. if you're 
using an alternate name you'll probably have to 
pay in cash, but mal<e sure that it's mostly in 
twenties rather than small denomination bills. 

if you cash in the unused portion of a round-trip 
ticket, don't turn right around and buy another 
one then,- come back later, after you've changed 
clothes and the airlines have changed shifts. 

c. Avoid traveling 
1. alone. 

ii. without luggage. 

iii. with empty luggage. 

iv. with untagged or improperly tagged luggage. 

V. with padlocks on your luggage. 

vi. with a shoulder bag. 

It's well to think about the type and amount of 
luggage that you'd be carrying if you really were 
going on the sort of trip you claim to be taking. 
The cops will be. 

d. Avoid being attired 

i. differently from the other passengers. 

ii. inappropriately for the weather. 

iii. during your return flight with the same 
clothes you wore when you left town. 

iv. so as to reveal strange bulges. 
- 283 - 



e. Don't engage in suspicious behavior, such as 

i. scanning. 

ii. cloalc-and-dagger stuff. 

iii. cautious, hesitant, nervous, or furtive 
behavior. 

iv. Icilling time inappropriateiy (e.g. malcing fre- 
quent trips to the water fountain or 
bathroom). 

V. inordinate haste. 

vi. going directly to the telephone. 

vii. not acting like friends with your traveling 
companion. 

An ordinary traveler (whom you will presumably 
want to be taken for) generally has one of two 
objectives on his mind when he enters the airport: 
(1) to get his ticket and get to the proper boarding 
gate, or (2) to meet his greeting party and pick up 
his luggage. Either way, whether he's coming or 
going, he isn't interested in the other people who 
are there. He's thinking about golf games, steak 
dinners, corporate plans, and the like, and as he 
goes from one place to the next he moves natu- 
rally and confidently, totally oblivious to the 
security measures around him. if he has to wait for 
a flight, he might browse in the gift shop, have a 
snack in the coffee shop, or read a book in the 
lobby. If he's arriving off a flight, and nobody's 
there to meet him, he'll simply go to the baggage 
area and pick up his luggage. Once he has it, he'll go 
rent a car or grab a taxi and leave. He's likely to be 
cheerful, enthused about his trip, and generally 
cordial toward airline personnel and security police 
alike; after all, he has no reason to fear the police. 

2. At airports, when entering the U.S. from 
another country, 



284 



a. Avoid coming directly from a "drug source 
country," if possible. 

b. With regard to your airline ticket, 
i. Avoid purchasing it with cash, 
ii. Know 

A) When it was purchased 

B) Where it was purchased (which travel 
agency or airport) 

C) How much it cost 

D) How it was paid for (by cash, checl<, 
credit card, etc.) 

iii. Avoid bool<ing an itinerary with short trips 
to drug distribution cities. 

c. Avoid traveling 

i. alone, particularly if you're a Latin woman, 
ii. with only one small piece of luggage. 

d. Avoid certain features of outward appear- 
ance: 

i. Shabby clothing 

ii. Bulky clothing 

iii. A fresh manicure of a woman's hands when 
their rough condition betrays her back- 
ground of manual labor. 

e. Avoid making repeated short trips to and 
from the U.S. on the same passport. 

f. Don't exhibit: 

i. Extreme passivity 

11. Excessively talkative or overly helpful 
behavior with the Customs agents 

iii. Nervousness 

iv. Indignation. It may help you escape police 
inquiries during a domestic flight, but it will 

- 285 - 



probably make things worse when dealing 
with Customs agents upon entering the U.S.' 

g. Have at least the appearance of being de- 
pendent upon commercial paper and plastic 
for your financial needs. 

i. Carry a checkbook, traveler's checks, and/or 
credit cards while making international 
trips. 

ii. Avoid carrying large sums of cash. 

h. When asked by Customs about your plans, 
have a plausible story ready which will with- 
stand detailed inquiry. 

i. If you claim to be on a sight-seeing visit, 
have a tourist-type itinerary planned out, 
including hotels, activities, etc. 

ii. If you claim to be visiting friends or 
relatives, 

A) Be prepared to give their names, ad- 
dresses, telephone numbers, and enough 
details about them to satisfy the Cus- 
toms agents. 

B) Avoid disclosing any plans you may have 
to stay at hotels, since a visitor from 
abroad would ordinarily be expected to 
stay with the people he's visiting. 

iii. If you claim to be visiting on business, 

A) Make your representations for a busi- 
ness that you really know about and 
have the bearing for. 

B) Have business cards, manuals, forms, etc. 
to substantiate your claim that you're in 

"that business. 

C) Have an itinerary planned out, including 
hotels you plan to stay at, the addresses 
of businesses you plan to visit, the pre- 



286 



cise description and cost of merchandise 
you pian to purctiase, etc. 

D) Have at least the appearance of ample 
credit and commercial paper with you 
to cover the travel expenses, purchases, 
etc. you claim you're going to be making. 

If it seems as though all these details regarding 
your cover story are superfluous and unnecessary, 
read the cases cited in Chapter 16 under the dis- 
cussion of the "mule profile." An implausible or in- 
consistent cover story was ultimately what got all 
those foll<s busted. 

3. In the vicinity of our national borders, avoid 
driving 

a. an enclosed truck, van, or station wagon. 

b. with numerous passengers. 

c. on infrequently traveled roads. 

The Border Patrol is constantly on the look-out 
for vehicles that might be carrying illegal aliens, so 
why invite trouble? 

4. Wtien crossing our national borders, avoid 
driving 

a. alone, especially if you're an elderly man. 

b. a rented car (which is usually evident from 
the decal in the window). 

c. with out-of-state license plates. 

d. an empty car. 

The Bureau of Customs has recently become in- 
terested in a class of older retired men who have 
developed a pattern of , making frequent solo trips 
south of the border in their automobiles. Some of 
them have discovered that they can supplement 
their social security checks by carrying back an 
occasional load of drugs for somebody, and Cus- 



287 



toms has therefore designated the elderly "gypsy- 
type" Individual as a target of special attention. 

unusual features concerning the automobile 
tend to suggest various smuggling schemes, so 
Customs is less iiiceiy to be suspicious of a local, 
privately owned car pacl<ed with the usual fishing 
rods and vacation gear. 

5. When you're likely to be under surveillance, 
avoid incongruous behavior such as 

a. using taxis for short distances. 

b. leaving your hotel to use a pay phone when 
there are phones in the rooms. 

c. Changing motels. 

d. malting unlil<ely transactions (such as renting 
a safe deposit box on a short visit.) 

e. crossing back over the border at sites other 
than the Customs gate (when the feds put 
someone under surveillance, they keep track 
of his border crossings). 

Any time you're involved in some major skul- 
duggery, there's a considerable chance that the 
police have noticed something going on, and are 
watching to see if it bears looking into. Under such 
circumstances, things which would ordinarily not 
raise any suspicion at all can begin to look very 
incriminating and prompt further unwanted 
attention. 

6. While boating on the Intracoastai Waterway.-^ 

a. Avoid being loaded heavily enough to cause 
the boat to ride low in the water. 

b. Keep the boat wiped free of salt spray. 

c. Keep the cabin windows and doors open. 

d. Be prepared to give plausible answers con- 
cerning: 

1. where you're coming from. 
- 288 - 



ii. what you're doing (fishing, diving, etc.). 

iii. who owns the boat. 

iv. how many people are aboard. 

V. whether there are any firearms aboard 
(avoid carrying them, and don't admit it if 
you do). 

vi. whether you have the boat's documents 
with you. 

e. Have the boat's documents ail together and 
handy to reach in case they're requested. 

f . Don't carry marijuana on board if it's pacl<aged 
such that the odor is detectable. 

B. Avoid evoking attention or suspicion in general. 
For example: 

1. Don't be a waildng sociai statement, if you're 
proud to be a member of some special interest 
or minority group, that's terrific, but leave the 
costume, song and dance at home. Bikers, cho- 
los, players, gays, nazis, and other such groups 
all have outspoken enemies who occasionally 
want to start something. Ordinary, dull, every- 
day people have no such problems. Look ordi- 
nary, and do yourself a favor. 

2. Don't be abrasive, beiligerant, or wierd. 

3. Don't malce wisecraclcs to the police.'^ 

4. Don't do tilings in public that are dead givea- 
ways of criminal activity (e.g. sniffing the 
merchandise during a drug transaction). 

5. Don't place incriminating items where they can 
be seen. 

6. Don't drive erratically. 

C. Maintain an attitude of legitimacy. 

1. Be sincerely convincing in everything you say 
and do. 



289 



2. If you're singled out for inquiry by the police, 

a. tfe confident. 

b. be politely indignant - not because you 
"l<now your rights" (which suggests a criminal 
background), but because you've "done 
nothing wrong" (which suggests a legitimate 
citizen who's unaccustomed to being 
bothered by the police). 

3. in the case of airport police, 

a. show your ID only if it's solid enough to 
withstand a computer check. 

b. present your ticket with the baggage stubs 
attached (don't remove them and attempt to 
hide them). 

Commandment III: 
KEEP QUIET 

A. Don't disclose Information to anyone unless he 
has a specific "need to know." This is standard 
policy for intelligence organizations, and while 
your secrets may not be as big as those of the 
CIA, they're every bit as Important to you. 

1 . That includes the people closest to you - your 
family and trusted friends (particularly in 
times of stress, e.g. when you're in jail). 

2. Be particularly cautious in so-called "privi- 
leged" relationships, such as: 

a. The doctor-patient relationship 

i. Never give a physician or psycho- 
therapist information or admissions per- 
taining to a crime. 

ii. Be advised that doctors are generally 
required by state law to report all gun- 
shot wounds to the police. 



290 



b. The attorney-client relationship 

I. Never tell a lawyer anything that he doesn't 
need to know to defend your present case. 

ii. Never tell a lawyer about your plans con- 
cerning a future Illegal activity. 

3. Regard business associates and casual acquaint- 
ances presumptively as undercover police. 

a. Take precautions to assure that they aren't 
"wired" during a transaction. 

b. Avoid conducting transactions in places that 
might be bugged (especially a hotel, jail, or the 
other person's place). 

4. Don't talk to police. In the words of Justice 
Jackson, "any lawyer worth his salt will tell the 
suspect in no uncertain terms to make no state- 
ment to police under any circumstances.''^ Be rude, 
if necessary. Let them think whatever they want, 
but no matter what they do or say, don't provide 
them with your words,- they'll find a way to use 
them against you. The kinds of volunteered state- 
ments which must especially be guarded against 
include: 

a. pleasantries and chit-chat. 

b. admissions of one's knowledge about facts in a 
crime. 

c. admissions of one's awareness of his rights and 
responsibilities. 

d. remarks which are prompted by ego or emotion. 

5. When dialogue with police is unavoidable: 

a. Always have a solid, irrefutable cover story 
prepared, right down to the minutiae. For 
example, if you give the telephone number 
and address of a friend's house instead of 
your own when you call in your airline reser- 
vation, be prepared to give a plausible expla- 



291 



nation of why, in case the cops check it out 
iater. Surprises are oniy fun at Christmas and 
birthdays. 

b. Don't tell a lie which can be refuted by 
checking. 

c. Be especiaiiy wary of private-duty poiice, 
foreign poiice, probation and paroie officers, 
and other "irreguiars." 

6. Avoid giving the poiice any information about 
your car or where you're staying. 

a. Have your car key made so that it doesn't 
show what type of car it goes to. 

b. Don't carry your hotel key around with you; 
ieave it at the hotei desk. 

c. Don't tell the police you have a car if you're 
arrested. Don't teii them what type it is or 
where it's located \f they ask. 

d. Don't tell the police which hotel you're using. 

B. Don't engage in conspiratorial dialogue over the 
telephone. Uniess you're using code words which 
are totaiiy meaningiess to the uninformed iis- 
tener, it isn't safe to use the teiephone for secret 
conversations, iviereiy couching your words so as 
to hint at what you're trying to say without 
coming right out and saying it doesn't fooi any- 
body,- if your partner can understand it, so can the 
cops who are iistening in. 

C. Take a firm defensive stand as soon as you suspect 
that an adversary situation exists. 

1. Once the police have decided to arrest you, 
don't go into explanations in an attempt to 
change their minds. You won't prevent the 
arrest, and your statements couid hurt you 
iater. 

2. Don't wait for them to read you your rights 
after they arrest you,- announce your own 



292 



Miranda rights to the police. University of 
Michigan Law Professor Yale Kamisar recom- 
mends something lilce thiS: 

I believe I have a perfectly good defense, but 
I want to talk to my lawyer about it first. I 
understand that I have a right to remain 
silent, and a right to discuss my situation 
with a lawyer before saying anything to the 
authorities, and I intend to do just that. I 
intend to exercise my constitutional rights. 
Nothing personal, you understand.^ 

If you're slicl< enough to do this, the cops won't be 
able to impeach you later with your post-arrest 
silence. 

3. Invoice silence by demanding counsel, and do so 
again every time they give the Miranda warn- 
ings. 

4. Never waive your silence thereafter. Pay no 
attention to their innuendos and threats. Ignore 
their offers of leniency. Turn a deaf ear even to 
an emergency plea for your help. The devil can 
cite Scripture for his purpose, and if you let his 
entreaties loosen your tongue you'll be sorry. 

D. Avoid becoming a grand jury witness. 

1. If you anticipate that you may be useful as a 
witness, both you and your associates may be 
better off if you can't be located when the 
subpoena comes out 

2. If you are subpoenaed, seeic to have yourself 
declared incompetent to testify. 

3. If you're forced to testify, invoke the Fifth 
Amendment right to silence to every question 
beyond your name, no matter how harmless. 
Don't answer even one question, because doing 
so will be a waiver of your right to be silent, if 
you persist with your silence, they'll be forced 

- 293 - 



to grant you immunity from the use of your 
testimony. 

4. If you're granted immunity, find as soon as 
possible some due which suggests that an illegal 
wiretap might have occurred, and make the 
allegation. Refuse to give further testimony ox\ 
that basis. 

5. Be taciturn and as unhelpful as possible. 



Commandment IV: 
DON'T CONSENT 

A. Don't let people into your home (or other parts of 
your property) unless you summon them yourself 
for a specific reason. When you do bring a stranger 
in. such as for repair worl<, be extremely cautious 
to patrol the place ahead of time in order to 
remove anything that may be incriminating or 
suspicious, and accompany him at all times while 
he's there. 

A strict closed-door policy is only necessary if 
you're into some type of crime, but you must 
realize that any crime at all places you in this 
category. Smol<ing a little weed or having a few 
eagle feathers on your wall might seem inconse- 
quential and harmless enough from your point of 
view, but they are crimes. Even if the fruits of 
your particular brand of mischief aren't the sorts 
of things that you display in plain view, it's still 
possible that some unforeseen item that's lying 
around can tie you in — something that an under- 
cover cop would recognize immediately. People 
who dabble in crime simply can't afford to lead a 
happy-go-lucky lifestyle. 

B. Never consent to a search, if the cops have a 
warrant, or if they have the legal justification 



294 



based on one of the exceptions to the warrant 
requirement, they'll do their search without your 
consent, if they don't have such justification, don't 
give It to them - not for a search of your person, 
your baggage, your car, your house - not for 
anything. 

Never consent to being detained. 

1 . Do not accompany the poiice If they ask you to 
go with them somewhere, insist on an arrest 
warrant (which will be useful to you for eviden- 
tiary purposes later). Force them to resort to 
physical restraint (arrest) in order to move you 
anywhere. 

2. As soon as you've met their initial inquiry with 
the barest minimum of Information, seeic to 
ieave. if they won't let you leave at first, l(eep 
trying to ieave until they are forced to either 
arrest you or let you go. 

3. If police inquiry occurs as you're about to make 
a flight, and there's any possibility of Incrimi- 
nating evidence being discovered, abort your 
trip and ieave the airport immediateiy 

4. if the poiice are detaining anything that be- 
iongs to you, announce that you wiii return for 
it iater, but don't wait for it 

Never consent to having your property detained. 

1. Don't voiuntariiy give them anything,- force 
them to seize whatever they wish to detain. 

2. if your iD is shaicy, if it doesn't match your 
ticicet, or /fit's good but you know that there 
is incriminating evidence in your luggage, do 
not show the iD or admit even having it with 
you. 

A void conferring your automatic consent 

1. Beware of the automatic consent which Is 
inherent in government contracts, the opera- 

- 295 - 



tion of govemmentally regulated businesses, 
and passage through governmental reserva- 
tions. 

2. Don't share a place with another person If you 
can't sustain a police search of it. 

3. Don't place your confidential property into the 
hands {or car, or house) of another person. 

F. Instruct your family and friends not to grant 
consent for Intrusions of your property,- but don't 
rely heavily upon their compliance. 



Commandment V: 
TRUST ONLY IVHAT YOU CONTROL 

A. For privacy from police Intrusion, rely upon your 
home more than your person: your person more 
than your luggage,- and your luggage more than 
your car 

B. For privacy In your buildings, rely upon living areas 
more than non-living areas,- non-public or 
infrequently-visited areas more than public or 
heavily visited areas,- and interior more than 
exterior areas. 

C. For privacy concerning your Identity: 

1. Never transport illegal items without using an 
alternate identity, in case you're forced to 
leave the parcel behind. 

2. Avoid conducting illegal transactions under 
your real identity and address, in case your 
partners prove to be untrustworthy. 

3. For alternate identity, use only solid (verifiable, 
state-issued) ID and plausible address and tele- 



296 



phone references (ones which won't lead to a 
vacant lot or a bewildered occupant when 
checked out). 

4. Never have more than one set of ID in your 
possession (Including your car) at one time. 

Always carry ample cash on your person to cover 
emergency expenses for which a check Isn't 
accepted (car towing and impoundment fees, bail 
bondsman fee, etc.). Carry it on your person, not 
in your baggage or car, where it might become 
unavailable. 

To assure the maximum legal right of privacy In 
your car, maintain complete control of It, take 
precautions to prevent Intrusions into it, and be 
present to object \f the police seel< to search it. 



Commandment VI: 

DON'T TRUST THE PRIVACY OF ANYTHING 

mm IS ACCESSIBLE TO THE PUBUC 

A. Be aware that cars, luggage and lockers which are 
In public locations are vulnerable to dog-snlfflng 
Inspection. 

B. Be aware that cars on public highways are vulner- 
able to electronic monitoring. 

C. Don't give your private papers even a limited 
showing. 

D. Don't put anything private Into the garbage. 

E. Don't keep a stolen car If Its VIN number (serial 
number) Is visible from the outside of the vehicle.^ 

F. Never leave contraband In the same container In 
which It was delivered. Customs, postal or delivery 
service employees may well have had a preview of 
it. 

- 297 - 



C. Avoid engaging in iliegal activities while under 
officiai scrutiny {e.g. investigation, bail, probation, 
etc.). 



Commandment VII: 
BE VKARY OF EVERYONE 

A. Be alert to any possible indications of treachery In 
iovers and friends. 

B. Don't deal with anyone whom you haven't inde- 
pendently checked out. 

C. Be supremely cautious of a deal where a third 
party shows up on the scene - particularly one 
who presumes to be a big shot or high-roller type. 

D. Be triply cautious if you're new to the business or 
to the locality, and therefore unfamiliar with the 
people. 

E. Don't accept favors from the police, and don't do 
them any. 



Commandment VIII: 
DON'T GIVE THE POUCE AN OPENING 

Unless they have independent reason to believe that 
you're guilty of some crime, the cops won't ordinarily 
have occasion to pry into your affairs. There are, how- 
ever, a number of situations which give them such an 
opportunity,- avoid them if at all possible. 

A. Avoid letting petty offenses go unresolved until 
they eventuate into outstanding warrants. 
Nobody likes to pay parl<ing tickets, but they can 
hurt you a lot more if you let them pile up until 
they mature into an arrest warrant that might 



- 298 - 



come at a disastrous time. The same holds true for 
court orders. 

B. Avoid providing an exception to the warrant 
requirement. 

1. Try to l(eep incriminating evidence wtiere it 
won't be exposed because of a fire, medicai 
emergency, burglary, etc. 

2. As much as possible, avoid iceeping incriminating 
evidence in a vehicie. 

3. if you suspect that you're being watched, if 
you're about to be arrested, or if you've just 
been arrested don't go to a place where there 
might be incriminating evidence, (e.g. your 
house or car). 

4. Don't keep incriminating evidence within the 
confines of a business which is heavily regulated 
by the government (e.g. mines, gun dealerships, 
liquor establishments, pharmacies, etc.). 

5. If an alternative exists, avoid entering zones of 
government domination ^NWere both discretion 
and frequency of search and seizure is height- 
ened. Examples of places to avoid include: 

a. military reservations 

b. prison grounds 

c. busy border-crossing areas 

d. Customs checkpoints 

e. fixed Border Patrol checkpoints 

f. agricultural inspection checkpoints 

g. roadblocks for checking on licensing and 
registration, drunk drivers, and manhunts 

Different types of governmental control areas 
pose varying levels of intrusion. The sort of recep- 
tion that you can expect at a licensing and regis- 
tration checkpoint, for example, should be min- 
imal:^ Uniformed cops are supposed to make the 



299 



inquiries, and only if they have reasonabie suspicion 
of a crime are they entitled to order people from 
their cars or asl< for consent to search. The narks 
and the sniff dogs aren't even supposed to be 
brought out where the motorists are unless they 
have probable cause. On the other hand, the 
Bureau of Customs has a virtually unlimited level of 
discretion to search and detain people who enter 
their domain, if you can't withstand a search or 
Inquiry, and you aren't sure exactly what kind of 
show they're running up ahead, your safest move 
is to discreetly pull off the road and find another 
direction to take. 

C. Don't give the police grounds to suspect that you 
might be in possession of either a weapon or 
contraband, if you're accustomed to putting on 
the gangster act, swallow your pride for a little 
while and try to look harmless while there are 
police around, unless you enjoy the frisk, you really 
don't want to convince them that you're a "bad 
dude." 

D. Don't violate vehicular laws. Because of automo- 
bile administrative regulations, traffic laws, and 
parking ordinances, police are successful in bring- 
ing about the unexpected arrest of more outlaws 
than by any other mechanism in their repertoire. 
These laws form a net in which fugitives, illegal 
aliens, drug dealers, thieves, republicans - every 
imaginable type of crook - can be caught. .Not- 
withstanding all the rhetoric about highway death 
tolls, the government would certainly want to 
keep these laws intact even if all vehicles were 
accident-proof; they're too good a pretext for 
catching people who are wanted for other rea- 
sons. Be sure, therefore, that you-. 

1. carry a valid driver's license. 

2. carry a valid automobile registration. 



300 



3. have no mechanical violations on your vehicle 
(e.g. broken lights, bad muffler, excessive ex- 
iiaust, etc.). 

4. obey the rules of safe driving. 

5. don't have the smell of alcohol or marijuana in 
the car 

6. park only in legal places during allowable times. 
Don't forget that parl<ing meters expire, and 
certain legal parking spots on the street 
become tow-away zones during rush hours. 



Commandment IX: 
DON'T LEAVE THE POUCE A HANDLE 

Once the cops do become Interested in you, it's still 
possible to frustrate much of their endeavors if you've 
taken certain routine precautions in advance. Without 
that one good handle on you - something to open the 
door for them - they'll often have to let you slip 
through their fingers. 

A. watch out for your personal property. 

1. Don't leave your confidential property in the 
hands of somebody whom you know to be a 
likely candidate for search and seizure. 

2. Don't abandon your confidential property 
when the police have custody of it Demand a 
search warrant, and promise to return for it 
later 

3. Always try to have a local friend to call upon for 
favors wherever you go. 

a. If you're arrested away from your dwelling, 
have a friend pick up your car before it's 
impounded. Speed is vital in order to accomp- 
lish this before the cops can figure out where 

- 301 - 



your car is. or before it's impounded for a 
parl<ing violation. 

b. If you're arrested in a town where you have 
a hotel room, have a friend go over and pick 
up your belongings from the room before 
the police get their hands on them. 

4. Register your car In the name of somebody else 
who will not be locatable by police. This reduces 
your status to that of borrower rather than 
owner of the car, and thereby allows you to 
legitimately deny knowledge of anything which 
might turn up from a search of the trunl< (provided 
that you haven't left your fingerprints or other 
trademarks in there), it also prevents the cops 
from locating your car after they've arrested you, 
since they'll be trying to look up the registration 
file on a car registered in your name. 

5. Don't carry weapons or contraband inside the 
passenger compartment of a car or the back of a 
camper 

6. If somebody should carry a weapon or contraband 
into the passenger compartment, be sure that he 
gets out of the car with it promptly in the event 
that the car is stopped by police. 

7. Always keep weapons and contraband 

a. locked In the trunk 

b. additionally locked inside a container Keep the 
key to the container well hidden in the trunk 
rather than on your person, thus forcing the 
police to damage the container in order to open 
it 

8. Keep drugs and explosives In hermetically sealed 
containers whenever transporting them so that 
a dog sniff cannot identify them. The outside of 
the containers must be washed clean, too, since 
any trace will alert the dogs. 



302 - 



9. Park away from your property whenever 
there's contraband in your car. This prevents it 
from faiiing within the reach of a warranted 
search of the house, in case that should occur. 
Don't mal<e a routine habit of parl<ing at a 
distance, however, or the cops might thinl< to 
specify your car In their warrant. 

B. Don't give them an excuse to detain or arrest you. 

1 . Don't go near your place if the cops are aiready 
there searching it, since that would entitle 
them to detain you as the occupant. 

2. Don't resist an illegitimate arrest. You'll beat it 
in court if the arrest is improper, but you'll 
make\t legitimate if you resist. 

3. Avoid associating yourself with a person or 
thing for which you know that the police have 
probable cause to make a seizure. Probable 
cause is highly contagious. 



Commandment X: 
GET A LAWYER 

Even if you know a considerable amount of law your- 
self, and are unwilling to completely trust your fate to 
the care of a shyster, you should always have one 
representing you from the earliest stages of a criminal 
beef, because: 

A. A lawyer can check out and challenge a complaint, 
a warrant, and the affidavit supporting the war- 
rant. As a defendant representing himself, you 
can't effectively do any of this. This simple expe- 
dient shouldn't be overlooked, because it might 
get* you released immediately and cause the entire 
case to be dismissed. 



303 



B. A lawyer can investigate the facts of your case to 
develop grounds for a defense. You can't investi- 
gate anything from a jail cell. 

C. A lawyer knows what to watch out for to protect 
your interests from prejudice during pretrial 
proceedings. 

D. A lawyer knows trial and appeal procedure,- he 
knows what to object to and when to do it so that 
it will be timely and effective. Chief Justice Earl 
Warren once said in this regard that "the jury 
system... becomes a trap for the layman because 
he is utterly without the ability to make it serve 
the ends of justice.''^" This is the proper job for a 
lawyer. 

E. A lawyer can negotiate deals with the prosecution 
more safely and effectively tWdx\ you can. You risk 
making evidentiary admissions every time you 
open your mouth in front of a prosecutor, a risk 
which doesn't exist if your mouthpiece does the 
talking. As an objective, experienced professional, 
the lawyer is also more likely to get you a better 
deal on a plea bargain than anything you'd be 
likely to swing yourself. You can't make a deal with 
the devil, but a lawyer certainly can (probably 
because they're so closely related). 

F. You should have legal counsel if you're subpoenaed 
as a witness before a grand Jury, even though you 
aren't charged with anything. There's a good 
possibility that you soon might be. 

C. Always be aware of the details of your case and of 
everything your lawyer does (and doesn't do) in 
representing you, particularly if he's a public 
defender. Don't hesitate to speak up to the court 
if you SMspect that he's screwing up,- it's Kowr case, 
and if you lose, it'll be /ot/ who goes to prison, not 
the lawyer... 



304 



REFERENCES 

1. People vHarman, Mich. Ct. App., 3/10/83 

2. as. V Mosquera-Ramirez, 729 F2d 1352-1355 
(11th Cir. 1984) 

3. U.S. V Gollwitzer, 697 F2d 1357, 1362 (11th Cir. 
1983) 

4. U.S. V Place 462 US_, 103 SCt 2637, 2640 (1983) 

5. People V Bittner, N.Y. Sup. Ct. App. Div. 2d Dept., 
11/14/83 

6. Watts V Indiana, 338 us 49, 59, 69 SCt 1347, 1357 
(1949), J. Jackson concurring in part 

7. Kamisar, Supreme Court Review and Constitu- 
tional Law Symposium, Washington, D.C. (Sep- 
tember 1982) 

8. State V Simpson, 95 wash.2d 170, 622 P2d ii 99, 
1210(1980) 

9. Garrett v Goodwin, 569 FSupp 106, 118-121 (E.D. 
Ark. 1983) 

10. Carnley v Cochran, 369 US 506, 524, 82 SCt 884, 
894 (1962), C.J. warren concurring 



305 - 



AFTERWORD 



- 307 



The author would leave you with a parting thought. As 
repressive as the cops are now, It's clear from the trends 
of the law that we're In for still harsher times ahead, it 
happened In Germany, it happened In Russia, and It's hap- 
pening now in the United States. The individual's rights 
are being steadily reduced by the government, and the 
prediction made by Judge Crosscup ninety years ago 
seems to have come of age: 

The battle for personal liberty seems to have 
been attained, but In the absence of the din and 
clash, we cannot comprehend the meaning of 
all the safeguards employed... The oppression of 
crowns and principalities is unquestionably 
over, and merciless majorities may yet consti- 
tute one of the chapters of future history .^ 

The pertinence of this warning to current develop- 
ments under the Moral Majority is too coincidental to 
ignore. 



1. U.S. V James, 60 F 264, 265 (1894) 



309 



INDEX 



311 - 



Abandonment 
of articles, 155, 163, 
266. 301 
Of premises, 128 

Accountant-client confi- 
dentiality, 188 

Accusatorial system, 178 

Acquittal, 26 

Adversary phase, 197 

Affidavit, 78, 244, 303 

Aggravating circum- 
stances, 25 

Aircraft, privacy inter- 
est in, 161 

Airport. See Functional 
border equivalent; 
Air travel 

Air travel, 281-287, 

294-296 

Aliens, illegal, 156, 158, 

161, 287 
Appeals court, 36 
Area-sweep searches, 158 
Arraignment, 23-24 
Arrest 

defined, 112, 201 

See a/so Custody 

illegal, 209, 294-295, 303 
justification for 
blood-drawing, 115 
for vehicle Impound- 
ment, 163 
for warrantless 
entry, 126, 139, 144-145, 

242-243, 299 

as justification for 

warrantless search, 

145,161-162,242-243,299 

for misdemeanor. 



Arrest (continued) 
for misdemeanor (con- 
tinued) 113,201 
public, 129, 145 

Attorney-client 
privilege, 184-188, 

227, 291 

Automobile 

extent of search, 

160-164, 302 

impoundment of, 163, 

301 

key, 292 

privacy Interest In, 

153-154,160-162, 

297, 298, 299, 302 

registration of, 302 

stolen, 297 

timeliness of search, 

162-163 
Automobile exception. 

See Exigency, 

automobile exception 



Baggage claims, 262, 290 
Bail, 23 

Banker-client confiden- 
tiality, 188 
Beeper, 147,160, 295 
Belongings, 153, 1 60-1 61 
Blood-drawing, 115, 189 
Body cavity searches, 

114-115,270 

Booking, 202 

Border detention, 270 

Border search 
of person, 115, 270 
range and extent of. 



313 - 



Border search (continued) 
range and extent of, 
(continued) 93, 105, 155- 
156 

of vehicles, 158, 287, 
308 

Of vessels, 93, 289 
"Bright line" rules, 90, 

162 
Business property, 128 
Business records, 1 81, 186 



Case law, 36, 59 

Cellblocks, 46 

Charges, multiple, 24-25 

Civil rights, loss of 
following convic- 
tion, 43-44, 52-53,105 

"Clear indication," 114, 
270 

Clergy-penitent priv- 
ilege, 183 

Closed containers, 
search of with 
exigency, 158-159 
incident to lawful 
arrest, 161, 302 
inventory, 163-164, 302 
with reasonable articu- 
lable suspicion, 156 

Coercion, 109, 137-138 

Competency 
evaluation of, 229 
of witness, 228, 293 

Competent counsel, right 
to have, 31, 304 

Complaint, 19, 78, 303 

Confession, 177-80, 205-206 



Confidential communica- 
tions, 181-183, 186-187, 

226-227 

Consecutive sentences, 

25 

Consent 
Automatic, 77, 130, 138, 
155,166-167,295-296,298 
Of a joint user, 77, 
155, 296 
through trickery, 138, 

139 

validity Of, 75-76, 137, 

138,204-205 

voluntary, 75-76, 114, 

137,294-296 

Constitution 

authority of, 33-34, 53-58 

mechanism of action, 

58-59 
Construction of laws, 34 
Contempt, 220-226 
Control. See Privacy 

interest, control as 
Controlled delivery, 153 
Conviction, 26 
Cops 

amateur, 13-15 

career aspirations, 11-12 

governmental functions 

of, 15-17 

objectives of, 17 
prosecutional proce- 
dures of, 19 
types of, 12-13, 142 
mentality of, 9-10, 
50-51 

private, 12-13, 15 
undercover, 138-139, 



314 



Cops (continued) 
undercover (continued) 
181,185,239-240, 
291, 295 
Corrections, 51-52 
Counsei, right to have 
present 

for consent, 137-138 
in grand jury, 226-227 
at interrogation, 
203-204, 207-208, 209, 
246-247 

at pre-trial proceed- 
ings, 108, 197 
for voluntary state- 
ments, 210-211 
Counts, multiple, 25 
Court of last resort, 37 
Court, types 36 
Credibility, of witness, 

228 
Curtilage, 127-128, 130, 146 
Custodial Interrogation, 
200-201, 207 

Custody defined, 197, 
200-01 

as threshold for adver- 
sary phase, 197, 
200, 295 



"Dangerousness," 25 
Death row, 46 
Decision, of court, 59 
Defense counsel 
private, 30 



Defense counsel (con- 
tinued) public defender, 

30, 304 
"Derivative entrapment," 

250 
Detention 

ofarticles,l57, 295, 301 

See also Luggage, de 

tentlon of 

duration of, 157, 263, 266 

of person, 87-88, 108-109, 

157 

duration of, 88, 106-107, 

109-110, 265-266 
Deterrence, 63-64 
"Dissipate the taint," 

See Evidence, dissipation 

of taint 
Doctor-patient 

privilege,l84, 187, 188, 

227, 291 
Dog sniff of articles, 155, 

264, 297, 302 

Of person, 105, 110 
Dorman standard, 1 41 -i 42 
Drop house, 125 
Drug courier profile 

deployment of, 257, 261 

indicia, 257-262 
Due process, 26-29, 33-34, 

251 



Effects, 153, 161 -167 
Electronic surveillance 
authorized, 140, 185-186, 



315 



Electronic surveillance 

(continued) 

authorized (con- 

tinued),2gi 

prevalence of, 17-18 

in public, 185-186 

unauthorized in grand 

jury, 227-228, 294 

legal protection 

against, 59, 123-124, 129, 

181 
Emetic, 114, 115 
Enhancement of penalty, 

25 

"Entrapment" defined, 
248-250 

prevalence of, 18 
right to be free of, 251 
sting operations, 240 

Evidence 
competency of, 226-227 
dissipation of taint, 62-63 
falsification of, 18 
hearsay, 78-79 
independent source of, 

63, 210, 221-222 

inevitable discovery 

of, 63 

informant testimony as 

probablecause, 79, 113 

live witness testimony, 

63,79 

materiality of, 226-227 

testimonial confession, 

178,220,304 

defined, 195 



Evidence (continued) 
papers, 165-166, 180, 
184-185, 220 

Exclusionary Rule 
criticism of, 60, 64-65 
evidence affected by, 60- 
61 

Exclusionary Rule (con- 
tinued) 
exceptions to, 63-64, 

74,127-128 

mechanism of action, 

61,180 

origin of, 60, 62 

purpose of, 61-62, 

65-66 

as a right, 62 

standing for, 62 
Ex-con, loss of rights 

SeeCivil rights, loss of 

following conviction 
Exigency 

automobile exception, 

87,160-161 

destruction of evidence, 

87-88,126,140,144-145 

hotpursuit, 87, 140 

as justification for body 

intrusions, 114 

for warrantless entry, 

140-141, 145, 242, 298 

for warrantless search, 

112,141-142,242 

to protect life and 
renderaid, 89, 126, 144, 
160, 211, 298 



316 



Exigency (continued) 
public health as, 141 

Expectation of privacy. 
See Privacy interest 



Grand jury (continued) 
representation by 
counsel at, 226, 304 
witness exemption, 

227-230, 294 



Fingerprinting, as nontesti- 

monial evidence, 1 14, 188 
Forfeiture, 154 
Forgetfulness, 226, 230 
Fourth Amendment 

meaning of, 74 

parties protected by, 74 
Frisk, 88, 106, 107, 270 
"Fruit of the poisonous 

tree" doctrine, 60, 80, 

196, 208, 209 
Full field search, 88, 91, 1 12 
Functional border 

equivalents, 93, 155-156, 

269, 284-285 



Garbage, 147, 295 

General warrant, 80, 160 

"Good cop-bad cop" ploy, 
199 

"Good faith," as an ex- 
ception to Exclusionary 
Rule, 64, 111 

"Grabbable area," 90-91, 

145,161-162 
Grand jury 
defined, 37-38 
length of term, 220 
mechanism, 226, 31, 247 
M/rd/7cfd warnings and, 
201 



Habeas corpus, the Exclu- 
sionary Rule under, 63 
Halfway house, 50 
Hearsay. See Evidence, 

hearsay 
"Heinousness," 26 
Holding, of court, 58 
Home intermediate 
Intrusion of, 137 
inventory search of, 

145,164 

privacy interest in 

defeat of, 137 

defined, 123-25 

extent of, 124, 126-127 

relative to other 

property, 161,294 

from surveillance, 129 
Hotel, 125, 138, 164, 302 

See also Home key, 292 
Hung jury, 26 



Identification 

alternate, 294, 295 

as credibility, 265 

as an investigatory 

tool, 261-262 

ordinances, 1 09-110, 241 
immunity 

inadequacy of, 222-224 



- 317 



Immunity (con- 
tinued) 

mechanism of, 221, 225, 
294 

impeachment 
as an exception to 
Inadmissible evidence, 

64, 212, 243 

Silence as, 207, 209 

volunteered statements 

as, 208 
"imperative of judicial 

integrity," 62 
Incarceration, 45-47 
"independent source" 

doctrine. See Evidence, 

Independent source of 
Indictment, 19, 38, 196 
"Inevitable discovery" 

doctrine, 63 
Informants, 14-15, 129, 

201,219-220,223-224,225 
Information, 19 
initial appearance, 23 

"innocent until proven 

guilty," 28 
Inquiry, right of, 104 
inquisitorial system, 

179, 224 

Intermediate Intrusion, 

89,106-107,137 

Interrogation 

during a Terr/ stop, 

109, 265 

reinitiation of, 204, 243 

tactics, 198-199, 201, 

225, 242-243 
Intrusion 

extension of, 103, 109 



intrusion (continued) 
reasonableness of 
method, 114-115 

inventory search, 92, 

145,163-164 
Itinerary, 262, 269, 
282, 284 



Jail, 44-45 

Judge, 30 



Keepers, 50-51 
Knock-and-announce Rule, 

142-43 



Land 
possessory interest in, 
127 

privacy interest in, 
127-129 

Laws, awareness of, 280 

Lawyers, See Attorney- 
client privilege; 
defense counsel- 
Judge,- Prosecutor 
attitudes toward, 31-32 

Legislature, and prison 
affairs, 52 

Lineup 
justification for, 113-114 
as nontestimonlal evi- 
dence, 188, 198, 211,304 
as a ploy, 199 



318 



Luggage 
detention of, 109-110, 
240, 263. See also Terry 
stop, detention of 
articles 

dog sniff of, 155, 263, 295 
privacy Interest In, 161 



Magistrate, presence at 
scene of a search, 280 

Maximum security, 46 

Medical unfitness, 
of witness, 230 

Medium security, 46 

Metal detector, as admini- 
strative search, 93, 104 

Military reservations, ad- 
ministrative search at, 
93, 298 

Minimum security, 46 

Miranda Rule 
criticism of, 202 
origin of, 199 

Miranda warnings af- 
ter an Illegal arrest, 209 
cops not obliged to give, 

207 

excepted during an 
exigency, 211 
response to, 202, 209, 

293 

self-announced, 293 
when required, 207, 
201-02 
Mule profile, 268-69 



No-choke position, 115 
No-l<nock entry, 139-140, 

142-143 
Non-waiver, of Miranda 

rights, 203-204 



Oath ex officio, 224 
"Open fields" doctrine, 
127 

"Outrageous government 
involvement," 244, 245 
Overbroad warrants, 80 
"Own recognizance," 23 
Ownership, as a privacy 
interest, 154 



Papers, 153, 161, 165-166, 

179-180,295 
Parent-Child privilege, 

183 
Parole, 50,155,242 
Peace and quiet, right 

to, 123 
Pen register, 147 
Perjury, 179, 225, 230 
Photography, as nontes- 

tlmonial evidence, 11 3, 

114,188 

"Plain suggestion," 177 
"Plain view" doctrine 

defined, 95-96 

during an exigency, 141- 

142, 298 



319 



"Plain view" doctrine 
(continued) 

incident to iawfui arrest, 
145,242 

during an inventory 

search, 164 

as probabie cause, 239- 

240, 294-295 

during a warranted 

search, 160 
Plant quarantine station, 

92 
Plea, 24 

Plea bargain, 24-25, 304 
Possession. See Control 
Possessory interest 

inarticles, 157, 265, 

301 

inland, 127 
Preliminary hearing, 19 
Prepping baggage, 155 
Pre-sentence report, 

27-28 
Pretext, 138, 241-243 
Pre-trial hearing, 25, 61 
Pre-trial psychological 

proceedings, 200, 211 - 

212,304 

Pre-trial release, 23 

Priors, 25 

Prison administrative 
searches at, 93, 298 
custody levels, 45-46 
deprivations at, 47 
as an economic 
venture, 48-49 



Privacy interest 

controlas, 125, 154, 

301 

defined, 123 

ownership as, 154 
Privileged statements, 

181-184,196,226 
"Probable cause" 

associations as, 113, 

303 

conduct as, 113 
defined, 19, 64, 78, 11 3 
informant's tip as, 

244-245, 263 
as justification for 
intrusive, 112 
reasonable govern- 
mental standards 
as, 128-129 
timeless of, 80,112 
Probation, 45, 104, 246 
Profiles, police, 108, 264, 
281. See d/50 Drug 
courier profile,- Mule 
profile; SIcyjacker 
profile 
Prosecutor, 10, 30, 38 
Protective search. See 
rerrK stop, protective 
search 
Psychotherapist. See 

Doctor-patient privilege 
Public defender, 30, 304 
Public esteem, right to, 

124 

Public health. 



- 320 



Public Health (continued) 
as an exigency, 141 



"Reasonable articulable 
suspicion" 
anonymous tip as, 157, 

158,244-245 
conformity to profile 
as, 108, 262, 270 

defined, 88,106-107 

as grounds for warrant, 

108,114 

level of intrusion with, 88 
Relax, right to, 124 
Repetitive nature, 26 
Reporter-informant con- 
fidentiality, 188 
Rover vehicle checks, 

158,161 
Ruse 

togainentry, 138, 144, 

238-240 

to modify behavior, 

240, 264 



Scanning, 260 

Search incident to lawful 

arrest 

scope of, 90-91,243 

timing of, 90-91 
Securing the premises, 

142 

Sentences, types, 45 



Sentencing, 27-28 
Silence 

as grounds for enhancing 

sentence, 209 

as Impeachment, 197, 

207, 209 

invocation of right to, 

202, 225, 293 

as a non-waiver, 203 
privllegeof, 180, 208, 

212, 220, 294 
Skyjacker profile, 267 
Slave, the convict as, 

44-45 

Spousal privilege, 183, 226 

Statements 
in furtherance of a 
crime, 210-211 
as leads, 196, 208, 210 
public, 185-186, 196 
volunteered, 196, 197, 
200, 208, 210 

Status quo, police pro- 
tection of, 15-17 

Statute, 33, 58 

Sting operations, 240 

"Stop-and-ldentify" 
ordinance, iio-m, 241 

Strip search, 93, 270 

Subpoena 
of papers, 165-166, 182, 

187, 188, 220 

Of person, 220, 229-230, 

294, 304 

"Substantial suspicion," 

114 



321 - 



Supermax, 45-46 

Suppression hearing 
See Pre-trial hearing 

Surgery, 115 

Surveillance. See Elec- 
tronic surveillance 

Swallower, 268-269 



Telephone conversation, 
181-182, 293 

Telephone numbers, 
dialing of 146 

Terry stop 
defined, 106-107 
detention. See Deten- 
tion 

identification during. 
See Identification 
protective search, 88, 
106-107,156-157,160,299 
right to not answer, 88, 

110, 265 

use of force during, 
108,111 
Third degree, 199, 208 
Threshold, of house, 125 
Throw-down gun, 18-19 
"Totality of circum- 
stances," 79 
Traffic stops, 158, 299-300 
Transactional immunity, 
221 

Transmitter, locational, 

147,160,295 
Trial 



Trial (continued) 

defined, 26, 304 

setting of date for, 24 
Trial court 

general jurisdiction, 

36-37 

limited jurisdiction, 

36 
Trustys, 46 



United States Supreme 

Court, 37 
Use immunity. See 

immunity, grant of 



Vehicles, privacy interest 

in, 158-161 
Vessels, search of, 

156,288-289 
voice analysis, 114 
voluntariness. 

See Consent, 

validity of 



waiver, of Miranda 
rights, 206-207, 293 

Warrant 
defined, 19, 78, 137 
groundsfor, 78, 108, 

114, 244 

as justification for 
body intrusions. 



322 



Warrant (continued) 
body intrusions (con- 
tinued) 114-115 
challenging validity of, 
79-80, 280, 295, 303 
no-l<nocl<, 140 
outstanding, 243, 298 
particularity of, 80, 
160, 165, 244, 303 

telephonic, 140, 264 
Warrant requirement 
exceptions 

administrative search, 
92 

exigency, 89 
good faith, 64 
search incident to 
lawfularrest, 90, 165 
vitality of, 79, 112, 125, 
126,128-129,240 

weal<ening of, 64, 74 
"Wild" sentences, 23-24 
Work furlough, 50 
Work product, 184 



X-ray, abdominal, 114, 270 



323 - 



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